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.

Human rights, criminal justice, NATO, business practice, reception with Georgia Law alums: Global Governance Summer School day 3, Brussels

Professor Amann, Ana Sofie Silveira, Lucia Hakala, Eunjun Kim, Bryant Oliver, Professor Doty, NATO Legal Adviser Steven Hill, Hanna Karimipour, Maddie Neel, Julian Skoruppa, Brooke Carrington, Saif Ahmed, Caroline Harvey, Mills Culver, and Frances Plunkett

BRUSSELS – A variety of briefings in this Belgium capital, and home of many European Union institutions, highlighted day 3 of the Global Governance School that our University of Georgia School of Law Dean Rusk International Law Center offers with the Leuven Centre for Global Governance Studies at KU Leuven, one of Europe’s premier research institutions.

Our cohort of students from Georgia Law and multiple European universities first traveled to the Brussels office of No Peace Without Justice (left), a nongovernmental organization founded a quarter-century ago to promote “the protection and promotion of human rights, democracy, the rule of law and international justice.” There Alison A. Smith (left), Legal Counsel and Director of the organization’s International Criminal Justice Program, took part in a dialogue on “International Human Rights Lawyering” with Georgia Law Professor Diane Marie Amann, Emily & Ernest Woodruff Chair in International Law and one of our Center’s Faculty Co-Directors. Then the organization’s Secretary-General, Niccolò A. Figà-Talamanca, described the Rome diplomatic conference that led to adoption in 1998 of the Rome Statute of the International Criminal Court.

Next, Steven Hill, Legal Adviser and Director of the Office of Legal Affairs at the North Atlantic Treaty Organization, outlined the work of his office, where an 8-lawyer team serves as counsel to NATO Secretary-General Jens Stoltenburg and further liaises with NATO lawyers throughout the world. He then discussed key issues likely to be discussed at next week’s NATO Summit. (Preparations for that meeting of member states’ heads of state and government precluded a visit to the new NATO headquarters; we are grateful to the Brussels law firm Van Bael & Bellis for providing the lovely conference room, pictured above, where our students met with Hill.)

Finally, we made our way to the Brussels office of Sidley Austin LLP. There Stephen Spinks (Georgia Law JD’76), a member of our Dean Rusk International Law Center Council, led a presentation on key areas of global business practice at his office. Spinks is the immediate past managing partner of that office, and a well-known lawyer expert in matters related to EU competition (in effect, antitrust) law and trade law. Assisting in the presentation by Spinks (standing, at left) were 4 additional Sidley lawyers. From left: Dr. Michele Boggiani, who spoke on anti-corruption and life sciences law, Paul Greaves, on data privacy law, Anne Robert, on competition law, and Dr. Bregt Natens, on trade law.

The day concluded with a lively reception that Sidley kindly hosted. Participants included our students, firm attorneys, Center Director Kathleen A. Doty and myself, Sidley attorneys including Wim Nauwelaerts (LLM’94), an alumnus and head of the firm’s data privacy group, plus other Georgia Law graduates. These included: Johan De Bruycker (LLM’90), General Counsel, Ageas, Brussels; Porter Elliott (JD’96), the Van Bael & Bellis partner who helped secure a room for the morning NATO presentation; Daniel J. Felz (JD’09), an associate at Alston & Bird LLP; Professor Erik Franckxx (LLM’83), Professor of Law Director of the Department of International and European Law at Vrije Universiteit Brussel; and Dr. Christof Siefarth (LLM’86), a partner at GÖRG law firm in Cologne, Germany, and member of our Center’s Council.

Our group returns to Brussels tomorrow, to the Royal Flemish Academy of Belgium for Science and the Arts, to take part in Reconnect: Reconciling Europe with its Citizens through Democracy and the Rule of Law, a conference kicking off a 4-year-research project among 18 partners, including our partner institution, the Leuven Centre for Global Governance Studies, KU Leuven.