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’s International Law Colloquium returns for Spring 2020

The International Law Colloquium, a time-honored tradition here at the University of Georgia School of Law, returns this spring semester with another great lineup of global legal experts.

This 3-credit course consists of presentations of substantial works-in-progress on a variety of international law topics by prominent scholars from other law schools. In keeping with a tradition established when the series began in 2006, students will write reaction papers on the scholars’ manuscripts, and then discuss the papers with the authors in class. Leading the class will be Harlan G. Cohen, Gabriel M. Wilner/UGA Foundation Professor in International Law and Faculty Co-Director of the Dean Rusk International Law Center. Other Georgia Law and university faculty will join in the dialogues.

Further supporting the colloquium are staff at our Center; in particular, the Center’s Global Practice Preparation team, which includes Sarah Quinn and Catrina Martin. The colloquium further benefits from generous support from the Kirbo Trust Endowed Faculty Enhancement Fund and the Talmadge Law Faculty Fund.

Presenting at the Spring 2020 Colloquium (pictured above, clockwise from top left):

► January 17: Karen Alter, Lady Board of Managers of the Colombian Exposition Professor of Political Science & Law, Northwestern University, on International Economic Governance and Dispute Resolution: A Contractual v. Rule-of-Law Approach? 

► January 24: Monica Hakimi, James V. Campbell Professor of Law, University of Michigan Law School, on Making Sense of Customary International Law 

► February 7: Jorge Contesse, Associate Professor of Law, Rutgers Law, on The Rule of Advice in International Human Rights Law

► February 21: Karen Knop, Professor, University of Toronto Faculty of Law, on Greenham Common Women’s Peace Camp and Foreign Relations Law From the Ground Up 

► February 28: Dan Bodansky, Foundation Professor of Law, Sandra Day O’Connor College of Law, Arizona State University, on Is the Concept of War Really Obsolete? 

► March 20: Fleur Johns, Professor, Faculty of Law, University of New South Wales, and current member of the Institute for Advanced Study at Princeton University, on #Help: The Digital Transformation of Humanitarianism and the Governance of Populations 

► March 27: Rachel Brewster, Jeffrey and Bettysue Hughes Professor of Law, Duke Law, on Corporate Families

► April 17: Matiangai Sirleaf, Assistant Professor of Law, University of Pittsburgh Law School, on Racial Valuation of Diseases

Georgia Law Dean Bo Rutledge, students Katherine Larsen and Miles Porter publish on Cuba sanctions

Recent change in US policy toward Cuba is the subject of a new commentary by the dean and 2 student researchers here at the University of Georgia School of Law.

Coauthoring the Daily Report article, entitled “Lawyers Should Keep Their Eyes on Cuba Sanctions Cases,” were international business law expert Peter B. “Bo” Rutledge, Dean and Herman E. Talmadge Chair of Law at Georgia  Law, along with 3L Katherine M. Larsen and 2L Miles S. Porter.

The article examines the potentially “broad implications for entities that conduct business in or with Cuba” that may follow from the announcement earlier this year that a portion of the mid-1990s “Helms-Burton Act would no longer be suspended, thereby allowing U.S. nationals to file lawsuits against any individual or entity that ‘traffics in property expropriated by the Cuban government.”

The full commentary is here.

Scholarly achievements, thriving initiatives featured in newsletter of Dean Rusk International Law Center

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For a recap of the year’s global law-and-practice accomplishments here at the University of Georgia School of Law, have a look at the just-published annual newsletter of the Dean Rusk International Law Center. Features include:

► Celebrating the scholarly achievements of our many other globally minded faculty and staff, including Diane Marie Amann, Christopher Bruner, Thomas V. Burch, Anne Burnett, Jason A. Cade, Nathan S. Chapman, Harlan G. Cohen, Kathleen A. Doty, Melissa J. Durkee, Walter Hellerstein, Lori Ringhand, Usha Rodrigues, and Peter B. “Bo” Rutledge.

► Events past and future, including day-long conferences cosponsored with the Georgia Journal of International & Comparative Law, public lectures and our Consular Series of lunch talks with Atlanta-based diplomats, cosponsorship of panels at regional and national international law meetings, and the upcoming International Law Colloquium Series.

► Initiatives aimed at preparing our J.D. and LL.M. students for global legal practice, including our Global Externships and our Global Governance Summer School, plus support for students’ organizations and international advocacy teams.

The full newsletter is here.

Center’s Laura Kagel meets with prospective LLMs in Mexico

portada_esLaw students in Guadalajara, Mexico will have the opportunity to talk with a Dean Rusk International Law Center staffer about pursuing a degree at here at the University of Georgia School of Law.

Laura Tate Kagel, the Center’s Associate Director of International Professional Education, will give a presentation for students this evening, Friday, October 18, at 7:00 p.m. about the LL.M. degree at the University of Georgia.

She has spent the day at the Expo CEEAD (Centro de Estudios sobre la Enseñanza y el Aprendizaje del Derecho), speaking with prospective students about the career benefits and special advantages of earning the Master of Law, or LL.M., degree at Georgia Law. (See prior posts about our current LL.M. students, as well as our hundreds of LL.M. alums, here.)

If you’d like to learn more about the LL.M. degree, please email LLM@uga.edu. EXPO CEEAD information is available here.

Student Caroline Harvey wins cultural heritage writing competition

Caroline HarveyCaroline Harvey, a current third-year student at the University of Georgia School of Law, is one of two 2019 winners of the Lawyer’s Committee for Cultural Heritage Preservation Law Student Writing Competition in Cultural Heritage Law.

Harvey’s paper, “An Avenue for Fairness: Disclosure-Based Compensation Schemes for Good Faith Purchasers of Stolen Art,” argues that in art replevin actions, courts should take an additional step in their due diligence analyses and consider whether a good faith possessor of stolen artwork should be entitled to compensation after forfeiting artwork to the true owner. This, she argues, would “more fairly balance the equities between the parties and avoid total loss to the good faith purchaser.”

Harvey currently serves as the Executive Notes Editor for the Georgia Law Review. After her first year, she participated in the Global Governance Summer School, and she completed a Global Externship At-Home at the Antiquities Coalition in Washington, D.C.  Last summer, she worked for Norris Legal Atlanta Law Group. She holds a B.A. in Art History from the University of Georgia, and hopes to practice in the areas of cultural heritage and art law.

Georgia Law Dean Bo Rutledge, student Katherine Larsen publish commentary on promise of new international mediation treaty

A new treaty seems poised to raise the profile of mediation as a way of resolving disputes, according to commentary by the dean and a student researcher here at the University of Georgia School of Law.

Coauthoring the Daily Report article, entitled “Singapore Convention Presents an Opportunity for Georgia in Mediation,” were international dispute resolution expert Peter B. “Bo” Rutledge, Dean and Herman E. Talmadge Chair of Law at Georgia  Law, and 3L Katherine Larsen.

The United States belongs to a number of treaties – most notably, the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards, concluded in New York in 1958 and so known as the New York Convention – that make make arbitration awards enforceable. This membership, the article observed, “has given arbitration a comparative advantage over other forms of dispute resolution.”

But that could change once the 2018 UN Convention on International Settlement Agreements Resulting from Mediation – named the Singapore Convention in recognition of the city where it was concluded last December –  enters into force. Some predict that could happen within a year, the authors wrote, then focused on the significance of this for the state of Georgia:

“Much like it adopted an international arbitration code, the state should consider enacting an international mediation law tied to the provisions of the Singapore Convention. Such legislation could enhance Georgia’s appeal as a mediation forum and build upon its reputation as a jurisdiction hospitable to business, including the resolution of business disputes.”

The full commentary is available here. A Global Atlanta news report on a related talk that Dean Rutledge delivered at the annual conference of the Atlanta International Arbitration Society is here.