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.

UGA Professor Jonathan Peters Participates in Expert Workshop on the ICCPR at Cambridge

JP headshot (1).jpgJonathan Peters, a media law professor with appointments in the School of Law and the Grady College of Journalism and Mass Communication, was among 34 scholars, policy leaders, and United Nations officials who participated in an expert workshop last week at the University of Cambridge on the right to peaceful assembly.

2019-12-04_11-36-49_243The workshop’s purpose was to support the U.N. Human Rights Committee by informing its drafting of General Comment No. 37 on Article 21 of the International Covenant on Civil and Political Rights. Article 21 guarantees the right of peaceful assembly, and the General Comment will provide an authoritative interpretation of that right as well as substantive guidance to ensure its practical enjoyment.

One significant open question is whether General Comment No. 37 will recognize the Internet as a space where assemblies occur—on social media platforms and through other information and communication technologies. Participants exchanged ideas about whether and how Article 21 could be interpreted to protect virtual assemblies.

Peters, whose research explores digital media and the law, discussed the state action doctrine in U.S. law and how it distinguishes public and private action, along with the history and evolution of the public forum doctrine and its application to physical and virtual spaces.

Other workshop participants came from the U.N. Human Rights Committee, the Office of the U.N. High Commissioner for Human Rights, the Organization for Security and Co-operation in Europe, the Office for Democratic Institutions and Human Rights, the European Center for Not-for-Profit Law, the International Center for Not-for-Profit Law, Amnesty International, Article 19, and numerous universities.

Georgia Law Professor Amann publishes in AJIL on ICJ advisory opinion on Chagos Archipelago

Professor Diane Marie Amann‘s most recent publication appears in the latest print edition of the American Journal of International Law, in the section that analyzes recent judgments. Entitled “International Decisions: Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965,” it may be found at 113 AJIL 784 (2019).

The essay sets forth key aspects of the advisory opinion (available here) that the International Court of Justice issued this past February respecting the Chagos Archipelago, a group of islands located in the Indian Ocean. The archipelago was considered part of Mauritius when both comprised a British colony. But after Mauritius won independence in the mid-1960s, Britain kept the archipelago, ejected its inhabitants, and leased it for a US military base, still there today. The legality and effects of this withholding, or detachment, were at the core of the ICJ proceedings.

Here at the University of Georgia School of Law, Amann holds the Emily & Ernest Woodruff Chair in International Law and serves as Faculty Co-Director of the Dean Rusk International Law Center. (Editor of AJIL’s International Decisions section is our Center’s other Faculty Co-Director, Georgia Law Professor Harlan Grant Cohen.)

Amann’s article, which also forms part of Georgia Law’s Dean Rusk International Law Center Research Paper Series at SSRN, may be accessed at this SSRN link or at the AJIL website. (She surveyed more recent developments related to this issue at her personal blog, in a post yesterday entitled “Chagos islands, at International Court of Justice and on to UK campaign trail.”)

Here’s the AJIL abstract:

“Decolonization and its quite valid discontents lay at the center of the recent International Court of Justice advisory opinion regarding the territory and populations of the Chagos Archipelago, located in the Indian Ocean. Answering questions posed by the UN General Assembly, the concluded that because these islands were detached from Mauritius as a condition of independence, the decolonization of Mauritius had not been completed in accordance with international law. The Court further ruled unlawful the United Kingdom’s continued administration of the Chagos Archipelago and called upon all UN member states to aid completion of the decolonization process. As detailed in this essay, the advisory opinion contained significant pronouncements on decolonization, on the right of all peoples to self-determination, and on the formation of customary rules respecting both.”

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.

Update from Nigeria: attorney Chukwudi Ofili, LLM Class of 2018, reflects on his post-graduation year

This is one in a series of posts by University of Georgia School of Law LLM students, writing on their participation in our LLM degree and about their post-graduate experiences. Author of this post is alumnus Chukwudi Ofili, a member of the Class of 2018.

Chudi photoIt has been an eventful year for me. In January 2018, during my last semester at the University of Georgia, I began a corporate in-house counsel externship – an experiential learning opportunity open to qualified Georgia Law LLM students – at Coca-Cola headquarters in Atlanta There, I had the opportunity to work on issues such as cybersecurity, imports, and Office of Foreign Assets Control compliance.

Following graduation, I took the New York bar examination in July.  When I learned that I had passed, I was in London, participating in the highly selective International Lawyers For Africa (ILFA) 2018 Flagship Secondment Programme (IFSP), which each year places lawyers from various African jurisdictions at highly reputed international law firms and corporations for a period of three months. I was placed with Trinity International LLP, a niche project and corporate finance firm focusing on energy, infrastructure, resources, and industry. During my secondment, I worked on some international transactions, with focus on financing power and infrastructure projects across the African continent.

Chudi speechIFSP was an enriching and exciting experience. It included training programs and networking events that introduced the participants to some of the brightest minds in the international legal market, in diverse practice areas. In particular, the networking opportunities were immense and may not be replicated in our lives on such a scale. I was pleased to selected to deliver the valedictory address for the London IFSP cohort at the ILFA Gala Night, which marked the end of the program.

I am now happy to be back in Nigeria at Bloomfield Law Practice, in the Corporate, Securities, and Finance practice group. I was recently interviewed for an article in THISDAY Newspaper Nigeria Legal Personality of the Week. In the interview, I expressed my hopes for good prospects in 2019. The year is already off to a good start: I’ve just completed a co-authored article,  Recognition and Enforcement of Cross-Border Insolvency; Nigeria in Perspective.

I came to Georgia Law after working with my firm, Bloomfield Law Practice, having graduated with first-class honors from Babcock University in Nigeria. At Georgia Law, I was the recipient of a prestigious graduate research assistantship, and participated in the Business Law Society.

I will always recommend the Georgia Law LLM curriculum, as it is tailored to each student’s career goals; for example, preparing to sit for a U.S. bar exam, or pursuing a concentration. Plus, students come to find out that Athens (which is just about an hour away from Atlanta) is a lovely place for studies, with friendly people.

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.

UK Consul General Andrew Staunton addresses Brexit at Georgia Law

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Andrew Staunton, Consul General of the United Kingdom pictured with Kathleen A. Doty, Director of Dean Rusk International Law Center

Last week, the Consul General of the United Kingdom Andrew Staunton delivered a lecture at the University of Georgia School of Law, “Leaving the EU: Impact on U.K.-U.S. Relations.” The event was the most recent installment of the Dean Rusk International Law Center’s ongoing Consular Series. The Consular Series presents students, staff, and faculty with global perspectives on international trade, cooperation, development, and policy.

In his lecture, Consul General Staunton described the political and economic context surrounding the British exit from the European Union and outlined the primary areas currently under negotiation. Describing the situation as “trying to take a raw egg out of a baked cake,” the Consul General nevertheless stressed that the United Kingdom will continue to work collaboratively with Europe and the United States to address international concerns. He emphasized that the United Kingdom will remain a strategic trading partner with the United States, and particularly with the Southeast.

Consul General Staunton has been a part of the United Kingdom’s diplomatic service since 1987. Prior to his current post as the Consul General in Atlanta, he served as Deputy Head of Mission and Economic Counsellor at the British Embassy in Athens, Greece. He was also Deputy Head of Mission at the British Embassy in Dublin, Ireland. Prior to these postings, Consul General Staunton served overseas in China, France, Romania, and Canada.

Watch the full lecture, including an introduction by Professor Diane Marie Amann, below: