Volume 90, Number 1

April 2015

Full of Sound and Fury: Curbing the Cost of Partisan Opportunism in Congressional Oversight Hearings

Cristian R.C. Kelly

As Congress creates bigger and broader federal programs and administrative agencies, appropriates larger sums on their behalf, and delegates more of its legislative authority to their leaders, it takes on a commensurate responsibility to diligently oversee those agencies. Because time and resources available for congressional oversight are limited, a committee’s decision to conduct a formal oversight hearing implicates a substantial opportunity cost. At the same time, oversight hearings present committees with considerable opportunities for grandstanding and political gamesmanship. The voting public should therefore demand that congressional committees use oversight hearings efficiently, pursuing benefits like agency accountability, transparency, and democratic legitimacy, rather than the committees’ own partisan electoral advantage. However, because congressional committees are complex political institutions and because legitimate oversight benefits can often coincide with partisan political objectives, the distinction is not always easy to discern from the outside. With these nuances in mind, I argue that the outside observer can infer a committee’s underlying motivations and predict a given hearing’s likely benefits by looking for specific patterns in the way the hearing is conducted—i.e., the hearing’s “operational functions.”

Unshackling Habeas Review

Alina Das

Chevron Deference and Statutory Interpretation in Immigration Detention Cases

This article questions the application of Chevron deference in federal court habeas review of statutory immigration detention challenges. Since the enactment of a mandatory detention statute for immigrants facing deportation, the Board of Immigration Appeals—an administrative body within the U.S. Department of Justice—has played an increasingly important role in interpreting the scope of detention for thousands of immigrants each year. Federal courts have long served as an important check against executive detention through habeas review and have declined to accommodate other deference norms in the immigration detention context. Federal courts have nonetheless applied Chevron to immigration detention cases without questioning whether such deference to the agency is appropriate. This article explains why federal courts should reject the application of Chevron when exercising habeas review of statutory immigration detention challenges. This article further explains that federal courts, whether or not fettered by Chevron, should apply interpretive norms that properly account for the important physical liberty interest at stake.

Judging Multidistrict Litigation

Elizabeth Chamblee Burch

High-stakes multidistrict litigations saddle the transferee judges who manage them with an odd juxtaposition of power and impotence. On one hand, judges appoint and compensate lead lawyers (who effectively replace parties’ chosen counsel) and promote settlement with scant appellate scrutiny or legislative oversight. But on the other, without the arsenal that class certification once afforded, judges are relatively powerless to police the private settlements they encourage. Of course, this power shortage is of little concern since parties consent to settle.

But do they? Contrary to conventional wisdom, this Article introduces new empirical data revealing that judges appoint an overwhelming number of repeat players to leadership positions, which may complicate genuine consent through inadequate representation. Repeat players’ financial, reputational, and reciprocity concerns can govern their interactions with one another and opposing counsel, often trumping fidelity to their clients. Systemic pathologies can result: dictatorial attorney hierarchies that fail to adequately represent the spectrum of claimants’ diverse interests, repeat players that trade in influence to increase their fees, collusive private deals that lack a viable monitor, and malleable procedural norms that undermine predictability.

Current judicial practices feed these pathologies. First, when judges appoint lead lawyers early in the litigation based on cooperative tendencies, experience, and financial resources, they often select repeat players. But most conflicts do not arise until discovery, and repeat players have few self-interested reasons to dissent or derail the lucrative settlements they negotiate. Second, because steering committees are a relatively new phenomenon and transferee judges have no formal powers beyond those in the Federal Rules, judges have pieced together various doctrines to justify compensating lead lawyers. The erratic fee awards that result lack coherent limits. So, judges then permit lead lawyers to circumvent their rulings and the doctrinal inconsistencies by contracting with defendants to embed fee provisions in global settlements—a well-recognized form of self-dealing. Yet, when those settlements ignite concern, judges lack the formal tools to review them.

These pathologies need not persist. Appointing cognitively diverse attorneys who represent heterogeneous clients, permitting third-party financing, encouraging objections and dissent from non-lead counsel, and selecting permanent leadership after conflicts develop can expand the pool of qualified applicants and promote adequate representation. Compensating these lead lawyers on a quantum-meruit basis could then smooth doctrinal inconsistencies, align these fee awards with other attorneys’ fees, and impose dependable outer limits. Finally, because quantum meruit demands that judges assess the benefit lead lawyers conferred on the plaintiffs and the results they achieved, it equips judges with a private-law basis for assessing nonclass settlements and harnesses their review to a very powerful incentive: attorneys’ fees.

Codifying Chevmore

Kent Barnett

This Article considers the significance and promise of Congress’s unprecedented codification of the well-known Chevron and Skidmore judicial-deference doctrines (to which I refer collectively as “Chevmore”). Congress did so in the Dodd-Frank Act by instructing courts to apply the Skidmore deference factors when reviewing certain agency-preemption decisions and by referring to Chevron throughout.

This codification is meaningful because it informs the delegation theory that undergirds Chevmore (i.e., that Congress intends to delegate interpretive primacy over statutory interpretation to agencies under Chevron or courts under Skidmore). Scholars and at least three Supreme Court Justices have decried the judicial inquiry into congressional intent as “fictional” or “fraudulent,” arguing that Congress doesn’t think about interpretive primacy, courts don’t really try to divine congressional intent, and courts rely upon overbroad assumptions as to congressional intent.

Dodd-Frank provides the best direct evidence to date as to congressional intent. Dodd-Frank reveals that Congress knows of Chevmore, legislates with it in mind, and acquiesces to its principles. But Dodd-Frank’s preemption provisions—which give an agency rulemaking power subject to Skidmore review—undermine the Supreme Court’s recent suggestion that Congress intends agencies to receive interpretive primacy (via Chevron’s more deferential review) whenever they have rulemaking authority. These insights support earlier precedents that did not treat rulemaking as a talisman. If courts apply these earlier precedents, Chevmore is neither fiction nor fraud.

Dodd-Frank also demonstrates Chevmore codification’s promise for addressing longstanding administrative-law issues. With “Chevron rewards” and “Skidmore penalties,” Congress can—as it did in Dodd-Frank—clarify how agencies must act to obtain Chevron deference, balance “hard look” judicial review with regulatory ossification, and respond to regulatory capture. Chevmore codification can thereby become a key legislative tool for overseeing the administrative state.


Rule of Reason Without a Rhyme

Shaun E. Werbelow

Using “Big Data” to Better Analyze Accountable Care Organizations Under the Medicare Shared Savings Program

Accountable Care Organizations (ACOs), a major component of the Affordable Care Act, seek to provide patients with better quality health care at a lower cost and have been praised for their ability to help repair our country’s broken health care system. Despite their potential benefits, however, ACOs also raise significant antitrust concerns—concerns that may pit consumer surplus and total surplus against one another. In an attempt to address these concerns, the Department of Justice and Fair Trade Commission announced that they will use market share screens and rule of reason treatment to evaluate ACOs participating in the Medicare Shared Savings Program. The use of market share screens and rule of reason treatment allows the antitrust agencies to avoid prioritizing either consumer surplus or total surplus in the first instance but leaves open two critical questions: What will the rule of reason treatment afforded to ACOs look like? And how will the antitrust agencies ultimately determine whether ACOs benefit or harm consumers? In order to address these questions, this Note proposes that the antitrust agencies use the “big data” collected under the Affordable Care Act to conduct a structured rule of reason review of ACOs that takes into account both the consumer surplus and total surplus through a burden-shifting framework.

Yes, It’s Illegal to Cheat a Paywall

Theresa M. Troupson

Access Rights and the DMCA’s Anticircumvention Provision

Traditional media companies, such as newspapers, have struggled to adjust their profit models to the Internet economy. Some newspapers have instituted “paywalls,” digital locks that limit access to online articles with varying degrees of logistical and financial success. As paywalls proliferate to protect digital media, methods for circumventing those paywalls develop and propagate just as quickly. The Digital Millennium Copyright Act (DMCA) prohibits circumventing an effective technological means of control that restricts access to a copyrighted work. However, two competing interpretations of the statute have emerged. The more widespread approach, the infringement-nexus interpretation, requires a nexus between circumvention and traditional copyright infringement to prove a violation of the statute. By contrast, the access-right interpretation reads the statute literally as providing a new right of access control to owners of copyrighted works. This Note argues that the access-right interpretation correctly reflects Congress’s intent by recognizing that the right to access a work—not just to copy or distribute it—has real value that deserves protection. However, the DMCA has some inherent problems that prevent it from offering effective, meaningful protection to the right of access. This Note discusses those problems and offers solutions for ensuring more effective protection to this newly recognized and increasingly valuable right.

Enabling State Deregulation of Marijuana Through Executive Branch Nonenforcement

Bradley E. Markano

In an apparent victory for federalism, the Obama Administration has set out a policy of deference to state marijuana regulations, even when state laws conflict with federal prohibition. Critics of this policy have alleged that the executive is unconstitutionally leaving portions of federal law unenforced, effectively legalizing a drug that is still classified as a Schedule 1 narcotic. But in reality, current executive branch guidelines for the exercise of prosecutorial discretion are limited, vague, and largely unenforceable. Instead, the real risk is not that current federal nonenforcement policy will effectively legalize marijuana, but that the policy will fail to induce the reliance necessary for states to serve as effective laboratories of experimentation. This concern can be addressed, to an extent, by requiring that U.S. Attorneys use their enforcement authority in a more formal, transparent, and reliable fashion. However, constitutional limits on executive power mean that deregulation is likely to remain imperfect until a legislative solution is enacted.

Are We Married? State Tax Filing Problem After Windsor

Aaron M. Bernstein

In the wake of United States v. Windsor, the IRS determined that a validly married same-sex couple is married for federal tax purposes regardless of their state of residence. A same-sex spouse residing in a state that does not recognize same-sex marriage is required to file federal taxes as married under federal law but is prohibited from filing as married in-state, thereby creating incompatibility—a filing status mismatch—between her federal and state income taxes. In order to resolve this, states should not require a same-sex spouse to prepare a pro forma “unmarried” federal return for state filing purposes, as this is inefficient to administer and enforce, and creates an inequitable compliance burden on the taxpayer. Nor should states delink their base from federal income or remove from their state tax codes all references to federal tax law, as this reduces tax efficiency. Instead, states should place traditional concerns of tax efficiency and equality above narrower same-sex marriage policy objectives when crafting their tax systems. Tax efficiency and equity require that states at least permit resident same-sex married taxpayers to allocate income and deduction figures already computed for their federal returns when preparing their state returns.