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.

Summer 2018 GEOs & Summer School: Georgia Law Students take off around the globe

Globe (002)_kdIn the weeks ahead, 13 rising 2L and 3L students at the University of Georgia School of Law will depart for Global Externship Overseas (GEO) and Global Externship At Home (GEA) placements all around the world. Administered by the Dean Rusk International Law Center, the GEO and GEA initiatives place Georgia Law students in externships lasting between four and twelve weeks, and offer students the opportunity to gain practical work experience in a variety of legal settings worldwide.

This summer, GEO students will undertake placements in law firms, in-house legal departments, nongovernmental organizations, and intergovernmental organizations across Europe, Asia, and the Pacific. Practice areas include: dispute resolution, corporate law, international trade law, intellectual property law, international human rights law, refugee law, cultural heritage law, and international environmental law.

This year’s GEO class includes the following students, who will complete placements in private law settings:

  • Brooke Carrington (2L) – Buse Heberer Fromm, Frankfurt, Germany
  • Brad Gerke (3L) – Ferrero S.A., Luxembourg
  • Ashley Henson (2L) – PwC, Turin, Italy
  • Maddie Neel ­(2L) – GÖRG, Cologne, Germany
  • Nicole Song (2L) – Araoz y Rueda, Madrid, Spain

Additionally, the following students will work in public interest law placements:

  • Zoe Ferguson (2L) – War Child, Amsterdam, Netherlands
  • Drew Hedin (2L) – Secretariat of the Pacific Regional Environment Programme, Apia, Samoa
  • Hanna Karimipour (2L) – No Peace Without Justice, Brussels, Belgium
  • Matt Isihara (3L) – Boat People SOS, Bangkok, Thailand
  • Devon Pawloski (2L) – Documentation Centre of Cambodia, Phnom Penh, Cambodia
  • Frances Plunkett (2L) – Open Society Justice Initiative, The Hague, Netherlands

Last, but certainly not least, two students will undertake GEA placements in Washington, D.C.:

  • Casey Callahan (3L) — International Trade Administration, U.S. Department of Commerce
  • Caroline Harvey (2L) – The Antiquities Coalition

Finally, during the first ten days of July, eight Georgia Law students will gather in Leuven, Belgium for the Global Governance Summer School, which the Center again co-presents with the Leuven Centre for Global Governance Studies. Students will spend several days in classroom sessions at Leuven, and then spend two days in Brussels: one to attend a high-level policymaking event, and the other on professional development visits at a law firm, a nongovernmental organization, and an intergovernmental organization.  The group will then proceed to The Hague, Netherlands, for several days of briefings at international courts and tribunals and other cultural excursions.

Join us in wishing these students an unforgettable summer, and stay tuned for travel updates in the coming months!

Georgia Law students sweeping the planet as Summer 2017 Global Externs

This summer, twenty law students will earn practice experience through our Global Externship initiative. Most will be GEOs, or Global Externs Overseas, while a couple are GEAs, or Global Externs At-Home. Some will complement this experience with participation in our Global Governance Summer School in Belgium and the Netherlands.

Administered by our Dean Rusk International Law Center, University of Georgia School of Law, the decades-old Global Externship enables Georgia Law students to gain practice experience via placements at law firms, in-house legal departments, government agencies, and nongovernmental organizations around the world. Thanks to generous donations, virtually all Global Externs receive financial support from law school funds; a few receive funds from their placement. (Posts about last year’s Global Externs here and here.)

This year’s class of rising 2Ls and 3Ls will work in Africa, North America, Asia, Europe, and the Middle East. The class includes twelve students in business-law placements, in practice areas including intellectual property, finance, environment, and trade:

Taryn Arbeiter, U.S. Court of International Trade, New York, New York
► Casey Callahan – Buse Heberer Fromm, Frankfurt, Germany
► James Cox – PSA Legal, New Delhi, India
► Nicholas Duffey – GÖRG, Cologne, Germany
► Brian Griffin – PwC, Milan, Italy
► Karen Hays – Fererro, Luxembourg
► Matt Isihara – MV Kini, New Delhi, India
► George Ligon – PwC, Milan, Italy
► Nils Okeson – Maples Teesdale, London, England
► Matt Poletti – Araoz & Rueda, Madrid, Spain
► Nicholas Steinheimer – PSA Legal, New Delhi, India
► Ezra Thompson – Al Tamimi & Co., Dubai, United Arab Emirates

The remaining eight students will be in public interest law placements, working on issues such as international criminal law, international child law, and international human rights:

► Jeremy Akin – Research Assistant for Professor William A. Schabas, Middlesex University, London, England
► Lauren Brown – War Child, Amsterdam, The Netherlands
► Jennifer Cotton – Global Coalition to Protect Education from Attack / Human Rights Watch, New York, New York
► Wade Herring – Open Society Justice Initiative, The Hague, The Netherlands
► Zack Lindsey – Women in Law and Development in Africa, Accra, Ghana
► Lyddy O’Brien – No Peace Without Justice, Brussels, Belgium
► Azurae Orie – Global Coalition to Protect Education from Attack / Human Rights Watch, remote research from Athens, Georgia
►Rebecca Wackym – Legal Unit of the Hebron Rehabilitation Committee, Israel

Join us in congratulating them on their success and wishing them a great summer!