Georgia Law Professor Kent Barnett on comparative study in “Chevron Abroad,” Notre Dame Law Review article co-authored with Georgia Law 3L student Lindsey Vinson

Pleased today to welcome a contribution from Kent Barnett (near right), J. Alton Hosch Associate Professor of Law here at the University of Georgia School of Law. He reprises his recent Yale Journal on Regulation blog post; it summarizes the forthcoming article, Chevron Abroad, which he co-authored with Georgia Law 3L Lindsey Vinson (above right). An expert on administrative law and related areas—at times using comparative approaches—Professor Barnett’s previous Exchange of Notes contribution is here.

The Kids Will Be Alright—How comparative study can inform U.S. judicial review of agency statutory interpretation

Chevron deference—the U.S. doctrine that calls for courts to defer to reasonable agency statutory interpretations—is under siege. A majority of current U.S. Supreme Court Justices have, at one time or another, expressed concern over its domain, operation, or very existence. Two state courts in the U.S. have overruled their state-law equivalents. Some welcome Chevron’s demise as an antidote to an ever-encroaching administrative state that chafes at statutory limits to authority. Others view Chevron’s internment as nothing but a judicial power grab in the face of ideological hostility to an effective administrative state. For my part, my past research co-authored with Dr. Christy Boyd and Professor Chris Walker suggests that—whatever its downsides—Chevron deference has the benefit of muting ideological judicial behavior. This muting can further national uniformity in lower court decisions concerning agency statutory interpretation.

But is the angst surrounding Chevron worth it? Do we really need to worry that administrative agencies will eventually consume all our liberty if Chevron continues or that the American bureaucracy will become an ineffective wasteland if Chevron ends? Moreover, even those not taken to hyperbolic worry have argued, to varying degrees, that Chevron deference is inevitable—whatever its drawbacks.

To evaluate whether Chevron or something like it exists or is absent in other stable democracies, my co-author, Lindsey Vinson, and I considered judicial review of agency statutory interpretation in five other countries in Chevron Abroad, our forthcoming article in the Notre Dame Law Review. Although we would have liked to see how countries with a presidential system like that of the United States behave, that system is rare, especially among mature legal systems. Instead, we looked at 5 parliamentary systems. These included countries with separation of powers guaranteed in written constitutions, with civil-law legal systems, and with federal systems. Among the countries studied were Germany, Italy, the United Kingdom, Canada, and Australia.

Based on our study, we cannot say that Chevron or something like it is inevitable. Only one of the countries that we studied had a doctrine similar, if not more expansive than, Chevron. One has rejected deference altogether, and one has rejected Chevron specifically in dicta. The others, at best, had some small space for deferring to agency interpretations. This variation among these major legal systems also suggests that the existence or absence of something like Chevron does not mean the end of either democracy or an effective bureaucracy. After all, citizens in both Canada—with a strong form of deference—and Germany—without one—have strong confidence in their governments. Of course, we cannot say that any of these systems are operating optimally, but we can say that Chevron existence or absence alone does not appear as significant as the U.S. administrative law cognoscenti often suggests.

In brief, here’s the variation that we found in our study:

Germany. Influenced by its conscious concern over the relationship between judicial abdication and its Nazi past, Germany has its own 2-step deference doctrine that has a much more limited domain than Chevron. Deference in Germany is significantly limited to certain technical, scientific, or economic matters that the legislature has delegated to the agency.

Italy. Italy has had tumultuous doctrinal shifts in the past few decades. As it stands, it has rejected judicial deference altogether when reviewing agency statutory interpretations. But it sends contradictory signals occasionally.

United Kingdom. For decades, the UK has rejected judicial deference to agency statutory interpretation, after having a doctrine similar to Chevron. Although it defers in some instances for “special” matters decided by entities that U.S. law would characterize as agencies, its limited deference arises under its law on charities.

Canada. Canadian judicial review comes the closest to Chevron, with a highly functional, contextual inquiry into whether deference is appropriate for statutory provisions that can support more than one reasonable interpretation. Canada has applied deference even to questions that implicated constitutional or common-law matters.

Australia. Finally, Australia’s High Court expressly rejected Chevron in dicta. Nonetheless, Australia continues to have a very limited, rarely applied doctrine somewhat similar to Chevron when statutes expressly give agencies exclusive jurisdiction and limit judicial review.

Our study also provides insight on how U.S. courts—whether or not they prefer Chevron—could go about improving Chevron in a way that is more consistent with its theoretical grounding.

For instance, Chevron, like other countries’ deference doctrines, is grounded primarily on notions of legislative delegation and expertise. Chevron relies primarily upon ambiguity in a statute that the agency administers to signal legislative delegation. But the presence of statutory ambiguity somewhere in a statute is not the most direct way of assessing either actual delegation or agency expertise on the matter at issue. Germany focus on expertise. German courts permit deference only in limited circumstances—for certain scientific, economic, or technical matters—as a way of ensuring that deference adheres only to matters in which the agency has likely epistemological advantage over courts. Australia has its limited Hickman deference doctrine that requires that the legislature signal its intent with two statutory clauses that it wants agencies (or inferior courts) to have interpretive primacy over the matter at issue. By doing so, Hickman requires a more direct, although not express, signal of legislative delegation than Chevron. These approaches in other countries suggest how Chevron could better ground itself on its theoretical foundations.

We hope that our article will lead more American scholars to consider how other countries approach administrative law matters. Doing so not only provides examples of possible improvements to the American administrative state, but it also helps lower the temperature of academics and judges who worry over the current or future state of Chevron deference.

Georgia Law Professor Diane Marie Amann on her article, in International Review of the Red Cross, on ICC OTP Policy on Children, accountability for conflict-related crimes against children

In this post Professor Diane Marie Amann, the Emily & Ernest Woodruff Chair in International Law and Faculty Co-Director of our Dean Rusk International Law Center here at the University of Georgia School of Law, discusses her most recent article related to the effects on children of armed conflict and similar extreme violence.

Very pleased to announce the publication of my new article, “The Policy on Children of the ICC Office of the Prosecutor: Toward greater accountability for crimes against and affecting children.”

As indicated in the just-before-publication version that I’ve posted at SSRN, the International Review of the Red Cross placed this article online last month, on February 21. Currently, that published version is available to Cambridge Core subscribers at a First View page; once it appears in print, in a special issue on “Children and War,” it will be freely accessible at the Review‘s website.

Here’s the abstract:

The Policy on Children published by the International Criminal Court Office of the Prosecutor in 2016 represents a significant step toward accountability for harms to children in armed conflict and similar extreme violence. This article describes the process that led to the Policy and outlines the Policy’s contents. It then surveys relevant ICC practice and related developments, concluding that despite some salutary efforts, much remains to be done to recognize, prevent and punish the spectrum of conflicted-related crimes against or affecting children.

This article represents my latest effort to assist in raising awareness and developing strategies respecting children and conflict (prior posts). It’s an effort in which I’ve been deeply involved since my 2012 appointment as the International Criminal Court Prosecutor’s Special Adviser on Children in and affected by Armed Conflict.

Central to this effort was the multiyear process of researching and drafting, along with an Office of the Prosecutor working group and in consultation with others, of the document published in 5 languages and launched in November 2016 as the Policy on Children. Other aspects have included:

Happy to provide further details. And as always, comments welcome.

(Cross-posted from Diane Marie Amann blog)

Georgia Law Professor Jason Cade presents on dissent, borderlands at Washington-St. Louis Law

Jason A. Cade, J. Alton Hosch Associate Professor of Law and the Director of the Community Health Law Partnership Clinic here at the University of Georgia School of Law, recently presented his article entitled “Death, Dissent, and Democracy in the Borderlands” at a faculty workshop at the Washington University School of Law in St. Louis, Missouri.

Georgia Law Prof Bruner presents “Leveraging Corporate Law” at Maryland Law Review symposium

Professor Christopher Bruner, the Stembler Family Distinguished Professor in Business Law here at the University of Georgia School of Law, took part in last Friday’s 2020 Maryland Law Review symposium, titled “Delaware’s Emerging Competition and the Future of American Corporate Law.”

Bruner, currently on a research stay at the University of the Witwatersrand in Johannesburg, South Africa, provided his presentation remotely of his working paper titled “Leveraging Corporate Law: A Broader Account of Delaware’s Competition.” Available at SSRN, the paper explores the increasingly global competitive landscape that Delaware – in the words of symposium organizers, “historically the most important jurisdiction for corporate law in the United States” – faces in corporate chartering and related fields.

During research stay at Wits Law in South Africa, Georgia Law Prof Bruner presents on corporations, sustainability

Professor Christopher Bruner, the Stembler Family Distinguished Professor in Business Law at the University of Georgia School of Law, recently gave a seminar presentation at the University of the Witwatersrand School of Law, as part of his ongoing research visit at that Johannesburg, South Africa, law school.

Title of the presentation was “Private Power and Public Good: Harnessing the Corporation for a Sustainable Future.” Its focus corresponded with Bruner’s research project, a comparative corporations book that:

1st, develops a new conception of the corporate form and associated rules of corporate law and governance; and

2d, builds on that framework to explore the corporation’s potential to contribute to environmental, social, and economic sustainability.

Georgia Law Professor Cade presents at Immigration Theory Workshop at University of Houston Law Center

Jason A. Cade, J. Alton Hosch Associate Professor of Law and the Director of the Community Health Law Partnership Clinic here at the University of Georgia School of Law, presented on a panel, entitled “Where are We Now? Unpacking Migration’s Present,” at the inaugural interdisciplinary Immigration Theory Workshop: “Imagining Migration After Populism,” held recently at the University of Houston Law Center in Houston, Texas.

Georgia Law Professor Harlan Cohen publishes “Thoughts on the Concepts of International and Rabbinic Laws”

Harlan Cohen, who is Gabriel M. Wilner/UGA Foundation Professor in International Law and Faculty Co-Director of the Dean Rusk International Law Center here at the University of Georgia School of Law, has published “The Primitive Lawyer Speaks!: Thoughts on the Concepts of International and Rabbinic Laws” in 64 Villanova Law Review 665 (2019).

The publication arose out of a symposium, held last year at Pennsylvania’s Villanova University School of Law, which explored explored implications of a 2018 Princeton University Press book by Villanova Law Professor Chaim Saiman. (prior post)

Here’s the abstract for Professor Cohen’s article, as set out at SSRN:

“Inspired by Chaim Saiman’s brilliant book, Halakhah: The Rabbinic Idea of Law, this essay draws connections between the lived experiences of international law and Jewish law, focusing in particular on (1) the centrality of practice, (2) the search for and construction of authority in communities of practice (the “invisible college”), (3) the challenges and opportunities of fragmentation and pluralism, and (4) the difficulty translating their methods to more state-like institutions, like courts and legislation. The hope is that this testimony of one of H.L.A. Hart’s primitive lawyers can provide a fuller, more textured picture of how law might operate or be experienced.”

Georgia Law Prof Amann among scholars at Temple Law roundtable on new international criminal law book

University of Georgia Law Professor Diane Marie Amann was one of a dozen scholars from the United States, Canada, and Italy who took part in a book roundtable Friday at Temple University Beasley School of Law in Philadelphia.

Organized by Temple Law Professor Margaret M. deGuzman, the roundtable focused on Justice in Extreme Cases: Criminal Law Theory Meets International Criminal Law, a forthcoming Cambridge University Press volume by Professor Darryl Robinson of Queen’s University in Kingston, Ontario.

Scholars touched on issues including both the interrelation of international criminal law with other fields of law and the methodologies of interpreting international criminal law – and how these considerations affected doctrines like mens rea and command responsibility. Contributions to the roundtable are due to be published in a future issue of Temple’s international law journal.

Professor Amann is the Emily & Ernest Woodruff Chair in International Law and a Faculty Co-Director of the Dean Rusk International Law Center here at Georgia Law. Her prior work on command responsibility includes writings here and here.

(Roundtable photo above thanks to another scholar-participant, Mark Kersten)

Foreign media quote Georgia Law Professor Elizabeth Burch on mass tort suits against Bayer herbicide Roundup

University of Georgia School of Law Professor Elizabeth Chamblee Burch, an expert on mass torts and complex litigation, recently was quoted in overseas news media regarding ongoing lawsuits against Bayer AG, the Germany-based multinational corporation.

The reporting centered on negotiations to end U.S. litigation in which tens of thousands of plaintiffs have alleged that glyphosate, an ingredient in the Bayer herbicide Roundup, is a carcinogen that causes non-Hodgkin’s lymphoma.

In an article entitled “Bayer vor Glyphosat-Einigung – So sieht der teure Plan aus” (“Bayer before the Glyphosate Agreement – This Is What the Expensive Plan Looks Like”), reporters Bert Fröndhoff and Katharina Kort wrote:

“Legal expert Elizabeth Chamblee Burch, professor at the University of Georgia, thinks it makes sense in principle to withdraw the product from the market beyond agricultural use. ‘But even that doesn’t solve the problem of complaints that can come from those who have already used the product,’ warns the lawyer.”

(Translated from the original German.) The article appeared in Handelsblatt, a business newspaper headquartered in Düsseldorf.

A separate article on the same subject, “Q&A – What Are the Obstacles to Bayer Settling Roundup Lawsuits,” appeared in Israel’s Haaretz. It this article, Reuters reporter Tina Bellon wrote:

“Non-Hodgkin’s lymphoma on average can take up to 10 years to emerge, increasing the likelihood of claims being filed after the litigation has settled. Product liability settlements generally include a cut-off date for future claimants and need to be properly funded for a court to approve the agreement.

“As long as the product continues to be sold without changes to the label, plaintiffs may continue to file lawsuits, said Elizabeth Burch, a law professor at the University of Georgia.”

Professor Burch, holder of the Fuller E. Callaway Chair of Law here at the University of Georgia School of Law,  is the author of Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation (Cambridge University Press 2019). In 2017, she presented at an international conference held by Tel Aviv University.

Expert in international migration law and policy, Oslo-based Tom Syring, gives talks at Georgia Law

Migration and the rule of law, particularly in sub-Saharan Africa, was the topic du jour yesterday at the University of Georgia School of Law, thanks to guest lectures by Tom Syring, Chairman of the Human Rights Research League, based in Oslo, Norway.

As the 2020 American-Scandinavian Foundation Visiting Lecturer, Syring is an expert in international refugee and migration law and policy, and co-editor, with Boston University Law Professor Susan Akram, of Still Waiting for Tomorrow: The Law and Politics of Unresolved Refugee Crises (2014). His visit to Georgia Law was part of a 2-month lecture and teaching tour that also includes stops in U.S. locations including Colorado, Massachusetts, New York, Ohio, and Texas.

Following his public, lunch-hour talk on “Refugees, Forced Migration, and Africa,” Syring met with students in the Refugee & Asylum Law seminar (pictured above) led by Georgia Law Professor Diane Marie Amann.

Together, the talks set forth:

Syring ended on a high note, pointing to the promising potential represented by countries in Africa, a continent rich in resources and a young, vibrant populace.

Cosponsors of the visit, in addition to Georgia Law’s Dean Rusk International Law Center and the American-Scandinavian Foundation, included two University of Georgia units, the African Studies Institute and the School of Public & International Affairs.

Special thanks are due to all those affiliated with Georgia Law who supported Syring’s visit: Mandy Dixon, Catrina Martin, Brad Grove, Sarah Quinn, Heidi Murphy, and Laura Kagel, as well as Professors Lori Ringhand and Harlan Cohen.