About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

1988 Duke L.J. 300 (1988)
Two Problems in Administrative Law: Political Polarity on the District of Columbia Circuit and Judicial Deterrence of Agency Rulemaking

handle is hein.journals/duklr1988 and id is 318 raw text is: ARTICLES TWO PROBLEMS IN ADMINISTRATIVE LAW: POLITICAL POLARITY ON THE DISTRICT OF COLUMBIA CIRCUIT AND JUDICIAL DETERRENCE OF AGENCY RULEMAKING RICHARD J. PIERCE, JR.* In a refreshingly candid article, Chief Judge Wald of the D.C. Cir- cuit noted in 1986: The flow of membership in the D.C. Circuit... is more like what one would expect in Congress with elections every few years, or in the Executive, shifting its key policymakers with each admin- istration.' Eleven of the twelve D.C. Circuit judges were appointed by President Reagan or President Carter within the last nine years. Most served previously in policymaking positions in either the legislative or executive branches of government. Based on their record of decision- making with respect to judicial review of agency actions, the new mem- bers of the D.C. Circuit seem to be experiencing a difficult, and as yet incomplete, transition from their prior active role in the partisan political process. Two problems have emerged in the D.C. Circuit's review of agency decisions. First, the democratic and republican judges on the D.C. Cir- cuit see agency policy decisions through dramatically different prisms. Deeply ingrained differences in political perspective become particularly apparent when the D.C. Circuit reviews agency policy decisions with sig- nificant ideological implications: the fate of a major agency policy deci- sion reviewed by the D.C. Circuit will vary with the composition of the panel that reviews the agency action.2 Second, policymaking through agency rulemaking has declined sig- nificantly at some agencies during the past decade.3 While other factors * Visiting Professor, Columbia University School of Law; George W. Hutchison Professor of Law, Southern Methodist University. B.S. 1965, Lehigh University; J.D. 1972, University of Vir- ginia. I am grateful for the helpful comments and criticisms of Peter Strauss. 1. Wald, Rebel Angel in Flight, DISTRICT LAW., July/August 1986, at 30, 32. 2. In our court right now, the result in close or controversial cases can turn on the composi- tion of the panel. Id. at 32. 3. T. MCGARITY & S. SHAPIRO, REPORT TO THE ADMINISTRATIVE CONFERENCE ON OSHA RULEMAKING (1987); S. MELNICK, REGULATION AND THE COURTS (1983); Mashaw & Harfst,

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most