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.

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.

Comparative constitutional law scholar Lori Ringhand is Center’s Interim Director; outgoing Director Kathleen Doty takes up post in Seattle

We’re delighted to announce that Lori A. Ringhand (near left), J. Alton Hosch Professor of Law, is the new Interim Director of the Dean Rusk International Law Center here at the University of Georgia School of Law. She succeeds Professor Kathleen A. Doty (left), who has just taken up a position as an Analyst in the Global Security, Technology, and Policy Group of the National Security Directorate at the Pacific Northwest National Laboratory in Seattle.

Ringhand (prior posts) returned to Athens earlier this academic year from Scotland, having been a Spring 2019 US-UK Fulbright Distinguished Chair at the University of Aberdeen. While overseas, she delivered “‘What Law?’ Political Spending on the Internet in the US and the UK,” a Gresham College Fulbright Lecture, at the Museum of London. An article that Ringhand researched and wrote during her Fulbright visit, entitled “First Amendment (Un)Exceptionalism: A Comparative Taxonomy of Campaign Finance Reform Proposals in the US and UK,” is forthcoming in the Ohio State Law Journal.

A well-known scholar of US as well as comparative constitutional law and election law, Ringhand’s publications include two co-authored books, Supreme Court Confirmation Hearings and Constitutional Change (Cambridge University Press, 2013) and Constitutional Law: A Context and Practices Casebook (Carolina Academic Press, 2d ed. 2017). After graduating from the University of Wisconsin Law School, she earned her Bachelor of Civil Law degree and was Professor of Law at the University of Kentucky College of Law and a Visiting Scholar at the Oxford Institute of European and Comparative Law. Her decorated career at Georgia Law includes service as Associate Dean for Academic Affairs and as a Provost’s Women Leadership Fellow, as well as the receipt of multiple teaching awards.

As Interim Director of the Dean Rusk International Law Center she will lead the staffers who support the Global Practice Preparation and International Professional Education portfolios – Mandy Dixon, Laura Kagel, Catrina Martin, and Sarah Quinn – along with numerous Student Ambassadors. Georgia Law Professors Harlan Cohen and Diane Marie Amann will continue to serve in advisory capacities as Faculty Co-Directors.

Professor Ringhand’s immediate predecessor, Professor Doty (prior posts), will pursue her career, as an international lawyer specializing in global security governance, at the national laboratory, an affiliate of the U.S. Department of Energy. Just prior to joining the Center as an associate director in 2015, she was Assistant Counsel for Arms Control & International Law at the Office of the General Counsel, U.S. Department of the Navy, Strategic Systems Programs. Doty has also served as attorney-editor at the American Society of International Law and inaugural Fellow of the California International Law Center at the University of California-Davis School of Law, from which she earned her J.D. degree.

Doty’s many Dean Rusk International Law Center initiatives included: teaching the International Advocacy Seminar; leading the Georgia Law-Leuven Centre Global Governance Summer School; launching the Consular Lecture Series; and managing the Center’s interdepartmental grant project relating to the United States’ North Korea sanctions regime. With deep thanks for her service, we wish her well in her new venture.

Australian Broadcasting Co. features Georgia Law Professor Dennis and new coauthored book, “Rap Lyrics on Trial”

A just-published article at ABC News, a digital publication of the Australian Broadcasting Co., features Georgia Law Professor Andrea L. Dennis (right), who holds the law school’s John Byrd Martin Chair of Law.

The article poses this headline question:  “Can violent rap lyrics be evidence of criminality or does the law misunderstand music’s biggest genre?” In seeking an answer, ABC music & pop culture reporter Paul Donoughue focuses on the new book Rap on Trial: Race, Lyrics, and Guilt in America (The New Press 2019), which Dennis, a criminal law expert, has coauthored with University of Richmond Liberal Arts Professor Erik Nielson.

The ABC article notes that the coauthors identified more than “500 cases in the US alone of rap lyrics being used in criminal trials, at times leading to inappropriate or wrongful convictions,” and continues:

“Few would say Johnny Cash’s famous lyric ‘I shot a man in Reno just to watch him die’ was evidence of the country singer’s murderous leanings, they write.

“‘It is quite clear to us that this [rap] is the only fictional art form that is used in this way,’ Professor Dennis said, adding that race was an essential factor in the story.

“There are very limited examples of it being appropriate, Professor Dennis said. For example, when a lyric accurately describes a specific crime.

“‘Usually, what’s happening is the lyrics are somewhat generic — talking about general crime or very common types of behaviour that almost any rap artist might talk about,’ she said.”

Donoghue further compares the U.S. situation to that in Australia, where speech protections are less strong but where no similar prosecution has yet taken place.

The full Australian article is available here; Dennis’ book, here.

Georgia Law Professor Ringhand presents comparative elections law paper on US, UK at Mercer conference

Lori A. Ringhand, J. Alton Hosch Professor of Law here at the University of Georgia School of Law, presented her comparative elections law scholarship last Friday at the “Contemporary Issues in Election Law” Law Review Symposium at Mercer University School of Law in Macon.

Ringhand, an expert in election law, constitutional law, and comparative law, presented a paper entitled “First Amendment (Un)Exceptionalism: US and UK Responses to Online Electioneering.” It’s a product of her Spring 2019 research as a Fulbright Distinguished Chair at the University of Aberdeen, Scotland (prior posts here and here).

Ringhand is presenting the same paper this semester at other law schools, including George Washington University and Marquette University.

The Mercer symposium also featured a paper by a United Kingdom-based scholar who’d spoken at Georgia Law last Wednesday: Professor Jacob Eisler, University of Southampton Law School.

Georgia Law Professor Bruner presents on comparative corporate governance methods at Fordham Law workshop

Christopher Bruner, the Stembler Family Distinguished Professor in Business Law here at the University of Georgia School of Law, took part this past weekend in a 2-day Comparative Corporate Governance Workshop at Fordham Law School in New York.

The  workshop centered around a new volume in progress, Research Handbook on Comparative Corporate Governance (Edward Elgar, forthcoming).

Bruner presented his own draft chapter, “Methods of Comparative Corporate Governance,” and also commented on draft chapters by two other contributors.

Delivering prestigious Gresham College Fulbright Lecture in London, Georgia Law Professor Lori Ringhand analyzes laws regulating online election campaign spending in US and UK

Pleased today to welcome back Lori A. Ringhand, J. Alton Hosch Professor of Law here at the University of Georgia School of Law, and, this Spring 2019 semester, a Fulbright Distinguished Chair at the University of Aberdeen, Scotland. In connection with her US-UK Fulbright award, Professor Ringhand gave a prestigious lecture this past Tuesday, April 2, in London. Her account of that lecture – available on video – is below.

I recently had the pleasure of delivering the Gresham College Fulbright Lecture at the Museum of London. Gresham College has been offering free public lectures to residents of London for more than 400 years, and has been offering Fulbright lectures in partnership with the US/UK Fulbright Commission for decades.  Recent Gresham lecturers include eminent public law scholar Vernon Bogdanor,  historian and author Timothy Garton Ash, and current Speaker of the House of Commons, John Bercow.

My lecture focused on the challenges faced by lawmakers in the United States and the United Kingdom as they try to ensure that campaign finance laws remain relevant in the age of widespread online electioneering. As both nations have discovered, our existing regimes are not built for a world in which political advertising spreads, rapidly, organically, and often anonymously, through online social media platforms.

Regulators in the US and the UK nonetheless rarely look to each other’s experiences to inform their own thinking in this complex area. The election law systems of each country are seen as so fundamentally different that comparative consideration seems pointless.

As I explained in my Gresham Lecture, I disagree.

The differences in regulatory approaches certainly are real, and significant:

  • In the UK, political spending is limited, and most of it runs through political parties and regulated third-party campaigners, with outside or unregulated groups historically playing little role.
  • In the US, in contrast, political spending is increasingly dominated by outside groups, which can both raise and spend unlimited amounts of money, often entirely outside of the federal regulatory system.

But in regard to regulating online election activity, the similarities between the two nations are much more meaningful than the differences. As I laid out in the talk, the regulatory challenges presented by online electioneering difficult in both principle and practice, but they are fundamentally the same in each country. Consequently, there is a great deal we can learn from each other in this area.

I hope my lecture helps us take a necessary first step in that direction.