ACUS Scholarship Spotlight: June 2015

This blog post is the third in a recurring series to spotlight administrative law scholarship by Conference members and staff. It was prepared by Abbey Hendricks, a summer intern and third-year law student at Lewis & Clark Law School. This post and attachment feature scholarship by Conference members and staff since our last post in April 2014, through June 2015. The views expressed therein are those of the individual authors and do not necessarily reflect the views of the Administrative Conference.

In his Fiscal Year 2016 budget, President Obama announced he will act on recommendations made by the Administrative Conference and the Government Accountability Office by proposing improvements to the Federal Civil Penalties Inflation Adjustment Act (Investing in America's Future, p.36). The President’s budget argues that effective civil penalties can help protect American workers’ health, safety, wages, and retirement.  ACUS Recommendation 2012-8, Inflation Adjustment Act,[1] called for a change to the statutory framework to remedy inflation distortions, in order to ensure that civil penalties remain an effective deterrent. This fall, ACUS Public Member Professor James Ming Chen will publish his supporting report, Inflation-Based Adjustments in Federal Civil Monetary Penalties, in the Yale Law & Policy Review.[2]

The Transatlantic Trade and Investment Partnership (T-TIP) agreement under negotiation aims to bolster the relationship between the U.S. and EU economies. An underlying challenge is how to reduce the regulatory barriers to trade and investment and improve coherence between the two systems. Along this vein, scholars have undertaken a comparative analysis of U.S. and EU regulatory systems. Susan E. Dudley (with Kai Wegrich) summarizes regulatory procedures in each jurisdiction in Achieving Regulatory Policy Objectives: An Overview and Comparison of U.S. and EU Procedures.[3] She identifies both challenges and opportunities for greater coherence and mutual recognition. Similarly, ACUS Attorney Advisor Reeve T. Bull explores the existing regulatory frameworks in both systems, and focuses on opportunities for public participation in each in his forthcoming article Public Participation and the Transatlantic Trade and Investment Partnership.[4] He proposes various reforms that might be considered in connection with T-TIP negotiations, drawing on best practices under both systems.

Other scholarship from the past year includes lively discussion on the politics and perceived politicization of administrative law. Public Member Anne Joseph O’Connell (with Daniel A. Farber) argues in The Lost World of Administrative Law[5] that the way federal agencies operate has increasingly diverged from the framework envisioned by the Administrative Procedure Act and early judicial decisions. Public Member Lisa Heinzerling concurs that contemporary administrative practice is out of step with classical administrative law in her response, Classical Administrative Law in the Era of Presidential Administration.[6] Public Member Nina A. Mendelson addresses the political delay in Senate confirmation of agency officials documented by Professor O’Connell, but suggests there can be some consequential positive effects on agencies in The Uncertain Effects of Senate Confirmation Delays in the Agencies.[7] Finally, Public Member Gillian E. Metzger writes about the political approach to structural innovation in the context of federal agency officer appointments in Appointments, Innovation, and the Judicial-Political Divide.[8] She discusses the Supreme Court’s two major recent separation-of-powers decisions, Free Enterprise Fund[9] and Noel Canning,[10]and argues they signal the Court’s resistance to innovative institutional arrangements or assertions of power at the federal level in the face of increasing political polarization in Congress and between Congress and the President.

These works are only a few among the many pieces of recent scholarship. Other recent publications by ACUS members span a variety of topics including the social cost of carbon, the use of plain language in rulemaking, and cost-benefit analysis. For a full list of recent publications by ACUS Members and staff, please see the attached fact sheet.


[1] Administrative Conference of the United States, Recommendation 2012-8, Inflation Adjustment Act, 78 Fed. Reg. 2,943 (Jan. 15, 2013).

[2] James Ming Chen, Inflation-Based Adjustments in Federal Civil Monetary Penalties, 34 Yale L & Pol’y Rev. __ (forthcoming 2015).

[3] Susan E. Dudley & Kai Wegrich, Achieving Regulatory Policy Objectives: An Overview and Comparison of U.S. and EU Procedures (George Washington University Regulatory Studies Center Working Paper, with support from the European Union, 2015).

[4] Reeve T. Bull, Public Participation and the Transatlantic Trade and Investment Partnership, __ Geo. Wash. L. Rev. __ (forthcoming 2015).

[5] Anne Joseph O’Connell & Daniel A. Farber, The Lost World of Administrative Law, 92 Tex. L. Rev. 1137 (2014).

[6] Lisa Heinzerling, Classical Administrative Law in the Era of Presidential Administration, 92 TEX. L. REV. SEE ALSO. 171 (2014) (Response to Daniel Farber & Anne Joseph O’Connell, The Lost World of Administrative Law).

[7] Nina A. Mendelson, The Uncertain Effects of Senate Confirmation Delays in the Agencies, 64 DUKE L.J. 1571 (2015).

[8] Gillian E. Metzger, Appointments, Innovation, and the Judicial-Political Divide, 64 DUKE L.J. 1607 (2015).

[9] Free Enter. Fund v Pub. Co. Accounting Oversight Bd., 561 U.S. 477 (2010).

[10] Nat’l Labor Relations Bd. V Noel Canning, 134 S. Ct. 2550 (2014).