Judicial interpretation of regulatory standards generally relies on the presumption that agencies are politically accountable and democratically "appointed" actors. As a result, courts defer to reasonable agency interpretations of ambiguous statutory language. This presumption, however, is severely outdated. The regulatory arena is replete with the privatization of regulatory decision making, which puts the current approach to agency deference in question. This Note seeks to address the changing nature of the regulatory framework by suggesting a modification of agency deference doctrine that accounts for the increasingly active role played by private parties in public governance. In proposing a new framework for agency deference in cases of private delegation, the Note explores parallels between agency deference and the non-delegation doctrine, addresses the relationship of agency deference to the separation of powers and the fragmentation of the political branches, and seeks to reinstate the judiciary as a primary expositor of statutory meaning in the private delegation context.
Friday, April 29, 2011
Cooper on Agency Deference
This paper "sounds in" administrative law more than legal history, but it includes a substantial section on the nondelegation doctrine in the 1930s. It is a note by Aaron Cooper, a member of the Georgetown University Law Center's Class of 2011, entitled Sidestepping Chevron: Reframing Agency Deference for an Era of Private Governance, and it is forthcoming in volume 99 of the Georgetown Law Journal. Here is the abstract: