Georgia Law Professor Kent Barnett compares administrative law approaches at conference in Poland


Pleased today to welcome a contribution from Kent Barnett, J. Alton Hosch Associate Professor of Law here at the University of Georgia School of Law. Professor Barnett concentrates his teaching and scholarship in the areas of contracts law, consumer law, and administrative law—including comparative approaches. He contributes the post below on his recent collaboration with European counterparts on the panel above, at a conference in Poland.

In what may come as a surprise for many American administrative law scholars, the world extends beyond Washington, D.C.

These scholars rarely consider comparative approaches to administrative law or debates in other legal systems. Perhaps they can be forgiven because of the ever-increasing complexity of domestic administrative law. But as conservative and liberal political and judicial factions contest an increasing number of longstanding tenants of domestic administrative law, comparative inquires may prove more useful and timely than ever.

I confirmed this intuition recently, when I accepted an invitation to participate in a conference concerning “Judicial Deference in Competition Law,” sponsored by the Centre for Antitrust and Regulatory Studies at the University of Warsaw this month. Taking part in a panel that considered general aspects of deference law, I discussed my research into the theoretical and doctrinal foundations of how American courts defer to administrative agencies’ determinations. My co-panelists—Drs. Mira Scholten and Rob Widdershoven, both professors at the Netherlands’ University of Utrecht—discussed deference in European Union courts or theoretical models for understanding deference in most legal systems.

Most of the legal models (whether of the EU, national European courts, or U.S. courts) follow similar paths when approaching how and whether to defer to agencies. In many instances, the terminology differs or the boundaries for similar doctrines may vary slightly. But in the main, these disparate legal systems have largely reached consensus on certain matters: deference to factual findings for technical matters and deference to discretionary decisions.

But my interactions with scholars in Poland confirmed that the European model has some striking differences from the American system—differences that inform two current debates:

► One difference, as numerous panelists mentioned during the conference, is that European models distinguish between civil and “criminal” punishments. “Criminal” matters are significant agency actions, such as large fines, which require significantly more judicial oversight. American law, in contrast, does not meaningfully distinguish between insignificant and significant agency actions against regulated parties. Perhaps doing so, however, would assuage growing concerns over U.S. regulatory agencies’ ability to fine regulated parties or deprive them of necessary business licenses, especially when regulated firms demonstrate good faith attempts at regulatory compliance.

► A second difference is that European courts do not defer to agencies’ interpretations of law. American courts, on the other hand, defer under the well-known Chevron doctrine to agencies’ reasonable interpretations of ambiguous statutory provisions. The European experience suggests that whatever Chevron’s constitutional or statutory demerits, deference to agency legal interpretations is not inevitable. Instead, it is a chosen policy or jurisprudential choice whose benefits or demerits support or cut against it.

In short, the conference represents but the beginning of comparative conversations that U.S. administrative scholars can and should have to inform debates about domestic administrative law.