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Kristin E Hickman - One of the best experts on this subject based on the ideXlab platform.
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brief of amicus curiae kristin e hickman in support of petitioners cic services llc v internal revenue service et al no 19 930 u s supreme court
2020Co-Authors: Kristin E HickmanAbstract:This amicus brief was filed before the United States Supreme Court in CIC Services, LLC v. Internal Revenue Service, No. 19-930, supporting the petitioners on the merits. The issue in the case is whether the Anti-Injunction Act, 26 U.S.C. s. 7421(a), precludes pre-enforcement judicial review of Administrative Procedure Act challenges against Treasury and IRS rules and regulations -- specifically in this case, IRS Notice 2016-66. Building on previous scholarship, the brief argues that statutory text, history, and purpose support a narrow interpretation of the Anti-Injunction Act that harmonizes with the Administrative Procedure Act and allows pre-enforcement judicial review.
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brief of amicus curiae professor kristin e hickman in support of petitioners cic services llc v internal revenue service u s sup ct petition stage
2020Co-Authors: Kristin E HickmanAbstract:This amicus brief was filed before the United States Supreme Court, supporting the petition for certiorari in CIC Services, LLC v. Internal Revenue Service, No. 19-930. The issue in the case is whether the Anti-Injunction Act, 26 U.S.C. s. 7421(a), precludes pre-enforcement judicial review of Administrative Procedure Act challenges against Treasury and IRS rules and regulations -- specifically in this case, IRS Notice 2016-66. The brief summarizes and expands upon issues raised and arguments made in some of my previous scholarship.
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Administrative law s growing influence on u s tax administration
Journal of Tax Administration, 2017Co-Authors: Kristin E HickmanAbstract:In its 2011 decision in Mayo Foundation for Medical Education and Research v. United States , the United States Supreme Court declared itself reluctant “to carve out an approach to Administrative review good for tax law only.” Since then, the government in litigation has conceded and lower courts have recognized that tax administration in the United States is subject to the Administrative Procedure Act, which imposes procedural requirements for and authorizes judicial review of the Actions of federal government agencies. A growing body of tax jurisprudence in the United States explores which tax Administrative prActices are susceptible to legal challenge under the Administrative Procedure Act and whether particular provisions of the Internal Revenue Code justify tax-specific departures from general Administrative law norms, doctrines, and requirements. This essay explores three cases that are particularly illustrative of this trend and, in turn, draws attention to the role of judicial review as a tool for prompting improvements in the administration of the tax laws.
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Administrative law s growing influence on u s tax administration
Social Science Research Network, 2017Co-Authors: Kristin E HickmanAbstract:Judicial review can be a powerful tool for prompting improvements in tax Administrative prActices. In the U.S., cases challenging Treasury Department and Internal Revenue Service Actions under the Administrative Procedure Act are driving just such change. The result will be greater transparency and accountability in the administration of the U.S. tax laws. In particular, this Essay highlights the Altera, Florida Bankers, and QinetiQ decisions and similar ongoing litigation.
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a problem of remedy responding to treasury s lack of compliance with Administrative Procedure Act rulemaking requirements
The George Washington Law Review, 2008Co-Authors: Kristin E HickmanAbstract:In earlier work, I found that more than 40% of Treasury regulations studied are susceptible to legal challenge for their failure to satisfy Administrative Procedure Act rulemaking requirements. Given this finding, why is it that taxpayers rarely raise such claims? The article explores this question and focuses particularly on statutory and doctrinal limitations on pre-enforcement judicial review in the tax context and their role in further limiting post-enforcement challenges. Although the article proposes ways in which the courts could relax the limitations on pre-enforcement judicial review in tax cases, the article also acknowledges that the courts are unlikely to change course and that congressional Action may be necessary.
Robin Kundis Craig - One of the best experts on this subject based on the ideXlab platform.
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a proposal for amending Administrative law to facilitate adaptive management
Environmental Research Letters, 2017Co-Authors: Robin Kundis Craig, J B Ruhl, Eleanor D Brown, Byron K WilliamsAbstract:In this article we examine how federal agencies use adaptive management. In order for federal agencies to implement adaptive management more successfully, Administrative law must adapt to adaptive management, and we propose changes in Administrative law that will help to steer the current process out of a dead end. Adaptive management is a form of structured decision making that is widely used in natural resources management. It involves specific steps integrated in an iterative process for adjusting management Actions as new information becomes available. Theoretical requirements for adaptive management notwithstanding, federal agency decision making is subject to the requirements of the federal Administrative Procedure Act, and state agencies are subject to the states' parallel statutes. We argue that conventional Administrative law has unnecessarily shackled effective use of adaptive management. We show that through a specialized 'adaptive management track' of Administrative Procedures, the core values of Administrative law—especially public participation, judicial review, and finality— can be implemented in ways that allow for more effective adaptive management. We present and explain draft model legislation (the Model Adaptive Management Procedure Act) that would create such a track for the specific types of agency decision making that could benefit from adaptive management.
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designing Administrative law for adaptive management
Social Science Research Network, 2014Co-Authors: Robin Kundis Craig, J B RuhlAbstract:Administrative law needs to adapt to adaptive management. Adaptive management is a structured decision-making method the core of which is a multi-step iterative process for adjusting management measures to changing circumstances or new information about the effectiveness of prior measures or the system being managed. It has been identified as a necessary or best prActices component of regulation in a broad range of fields, including drug and medical device warnings, financial system regulation, social welfare programs, and natural resources management. Nevertheless, many of the agency decisions advancing these policies remain subject to the requirements of either the federal Administrative Procedure Act or the states’ parallel statutes. Adaptive management theorists have identified several features of such Administrative law requirements — especially public participation, judicial review, and finality — as posing barriers to true adaptive management, but they have put forward no reform proposals. This Article represents the first effort in adaptive management theory to go beyond complaining about the handcuffs Administrative law puts on adaptive management and to suggest a solution. The Article begins by explaining the theory and limits of adaptive management to emphasize that it is not appropriate for all or even most agency decision making. For its appropriate applications, however, we argue that conventional Administrative law has unnecessarily shackled effective use of adaptive management. We show that the core values of Administrative law can be implemented in ways that much better allow for adaptive management through a specialized “adaptive management track” of Administrative Procedures. Going further, we propose and explain draft model legislation that would create such a track for the specific types of agency decision making that could benefit from adaptive management.
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designing Administrative law for adaptive management
Vanderbilt Law Review, 2014Co-Authors: J B Ruhl, Robin Kundis CraigAbstract:Administrative law needs to adapt to adaptive management. Adaptive management is a structured decisionmaking method, the core of which is a multistep, iterative process for adjusting management measures to changing circumstances or new information about the effectiveness of prior measures or the system being managed. It has been identified as a necessary or best- prActices component of regulation in a broad range of fields, including drug and medical-device warnings, financial system regulation, social welfare programs, and natural resources management. Nevertheless, many of the agency decisions advancing these policies remain subject to the requirements of either the federal Administrative Procedure Act or the states' parallel statutes. Adaptive management theorists have identified several features of such Administrative law requirements-especially public participation, judicial review, and finality-as posing barriers to true adaptive management, but they have put forward no proposals for reform.This Article represents the first effort in adaptive management theory to go beyond complaining about the handcuffs Administrative law puts on adaptive management and to suggest a solution. The Article begins by explaining the theory and limits of adaptive management to emphasize that it is not appropriate for all, or even most, agency decisionmaking. For appropriate applications, however, we argue that conventional Administrative law has unnecessarily shackled effective use of adaptive management. We show that through a specialized "adaptive management track" of Administrative Procedures, the core values of Administrative law can be implemented in ways that much better allow for adaptive management. Going further, we propose and explain draft model legislation that would create such a track for the specific types of agency decisionmaking that could benefit from adaptive management.The Administrative style that has charActerized American public law from the New Deal to the 1980s has been out of favor in recent years.-Charles Sabel and William Simon1I. INTRODUCTIONIn the never-ending project to build a better regulatory state mousetrap, two of the most seductive reinvention models to emerge over the past few decades have been market-based regulation2 and adaptive management.3 Representative of two broad and opposing thrusts of regulatory reform, one advocating "minimalism"4 and the other "experimentalism,"5 market-based regulation and adaptive management originate from the same premise but move in starkly different directions. This Article examines the path that adaptive management has taken and proposes how to steer it out of a dead end by changing the inner workings of Administrative law.The starting point for both regulatory reform models is the depiction of Administrative agencies as having become boxed into a decisionmaking process that depends heavily on a culture of comprehensive rational planning and prescriptive regulation.6 The dominant decisionmaking method used to implement this regime relies heavily on two related attributes: (1) the use of "front-end" analytical tools comprehensively conducted and concluded prior to finalizing the decision, and (2) the assumption of a robust capacity to predict and assess the market and nonmarket impActs of any proposed Action.7 However, this approach constrains agency flexibility by demanding hyperdetailed predecisional impAct assessments, intense public participation during the decisionmaking process, and postdecision hard look judicial review.8 The combined effect of this procedural gauntlet, codified in large part through the federal Administrative Procedure Act ("APA")9 and its state counterparts, has been to channel self-preserving agencies into cramming all that could possibly be thought or dreamed about Actions they carry out, fund, or authorize into single-shot, all-encompassing decision extravaganzas. Especially in rulemaking, this impetus toward up-front comprehensiveness strongly encourages agencies to steamroll their decisions through public-comment scrutiny and judicial review litigation and then never look back. …
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Administrative law in the u s supreme court 2004 2006 trends cases and unexploded bombshells
2006Co-Authors: Robin Kundis CraigAbstract:This article accompanies a presentation at the Texas Bar Association's 18th Annual Advanced Administrative Law Course, held September 2006. It provides readers with a comprehensive review of Administrative-law-related decisions from the U.S. Supreme Court in its 2004-2005 and 2005-2006 terms. First, the article examines three trends in the U.S. Supreme Court's federal Administrative law jurisprudence going into the 2004-2005 term: (1) limited interpretation of the federal Administrative Procedure Act (APA); (2) limiting Chevron deference; and (3) federalism and the role of state authority in federal Administrative law. Second, the article provides a comprehensive review of Supreme Court decisions from October 2004 through June 2006 for Administrative law prActitioners. Finally, the article identifies two unexploded bombshells in Administrative law jurisprudence and four cases to watch during the 2006-2007 Supreme Court term.
Bryan T Camp - One of the best experts on this subject based on the ideXlab platform.
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a history of tax regulation prior to the Administrative Procedure Act
Social Science Research Network, 2014Co-Authors: Bryan T CampAbstract:The relationship of the APA to tax administration has been the subject of increasing scrutiny from scholars and courts. Some of this scrutiny has critiqued the long-held view of the Department of Treasury that tax regulations issued under the general grant of authority in I.R.C. § 7805(a) are interpretative regulations within the meaning of the APA. Scholars and courts alike complain that "tax exceptionalism" has no place in the application of the APA. This Article reviews the almost 150-year history of tax administration before enActment of the APA to show the origins and basis for Treasury's long-held view. The Article also argues the very concept of "tax exceptionalism" rests on an erroneous premise. Rather than assuming that the APA provisions carry uniform meaning as applied to all federal agencies, this article submits that the general terms of the APA must be informed by the pre-APA history of tax regulation.
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a history of tax regulation prior to the Administrative Procedure Act
Duke Law Journal, 2014Co-Authors: Bryan T CampAbstract:The relationship of the Administrative Procedure Act (APA) to tax administration has been the subject of increasing scrutiny from scholars and courts. Some of this scrutiny has critiqued the long-held view of the Department of Treasury that tax regulations issued under the general grant of authority in I.R.C. § 7805(a) are interpretative regulations within the meaning of the APA. This Article reviews the almost 150-year history of tax administration before the enActment of the APA to show the origins and basis for this long-held view. The Article also argues that the application of the general terms of the APA to tax administration must be informed by this pre–APA history of tax regulation.
J B Ruhl - One of the best experts on this subject based on the ideXlab platform.
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a proposal for amending Administrative law to facilitate adaptive management
Environmental Research Letters, 2017Co-Authors: Robin Kundis Craig, J B Ruhl, Eleanor D Brown, Byron K WilliamsAbstract:In this article we examine how federal agencies use adaptive management. In order for federal agencies to implement adaptive management more successfully, Administrative law must adapt to adaptive management, and we propose changes in Administrative law that will help to steer the current process out of a dead end. Adaptive management is a form of structured decision making that is widely used in natural resources management. It involves specific steps integrated in an iterative process for adjusting management Actions as new information becomes available. Theoretical requirements for adaptive management notwithstanding, federal agency decision making is subject to the requirements of the federal Administrative Procedure Act, and state agencies are subject to the states' parallel statutes. We argue that conventional Administrative law has unnecessarily shackled effective use of adaptive management. We show that through a specialized 'adaptive management track' of Administrative Procedures, the core values of Administrative law—especially public participation, judicial review, and finality— can be implemented in ways that allow for more effective adaptive management. We present and explain draft model legislation (the Model Adaptive Management Procedure Act) that would create such a track for the specific types of agency decision making that could benefit from adaptive management.
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designing Administrative law for adaptive management
Social Science Research Network, 2014Co-Authors: Robin Kundis Craig, J B RuhlAbstract:Administrative law needs to adapt to adaptive management. Adaptive management is a structured decision-making method the core of which is a multi-step iterative process for adjusting management measures to changing circumstances or new information about the effectiveness of prior measures or the system being managed. It has been identified as a necessary or best prActices component of regulation in a broad range of fields, including drug and medical device warnings, financial system regulation, social welfare programs, and natural resources management. Nevertheless, many of the agency decisions advancing these policies remain subject to the requirements of either the federal Administrative Procedure Act or the states’ parallel statutes. Adaptive management theorists have identified several features of such Administrative law requirements — especially public participation, judicial review, and finality — as posing barriers to true adaptive management, but they have put forward no reform proposals. This Article represents the first effort in adaptive management theory to go beyond complaining about the handcuffs Administrative law puts on adaptive management and to suggest a solution. The Article begins by explaining the theory and limits of adaptive management to emphasize that it is not appropriate for all or even most agency decision making. For its appropriate applications, however, we argue that conventional Administrative law has unnecessarily shackled effective use of adaptive management. We show that the core values of Administrative law can be implemented in ways that much better allow for adaptive management through a specialized “adaptive management track” of Administrative Procedures. Going further, we propose and explain draft model legislation that would create such a track for the specific types of agency decision making that could benefit from adaptive management.
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designing Administrative law for adaptive management
Vanderbilt Law Review, 2014Co-Authors: J B Ruhl, Robin Kundis CraigAbstract:Administrative law needs to adapt to adaptive management. Adaptive management is a structured decisionmaking method, the core of which is a multistep, iterative process for adjusting management measures to changing circumstances or new information about the effectiveness of prior measures or the system being managed. It has been identified as a necessary or best- prActices component of regulation in a broad range of fields, including drug and medical-device warnings, financial system regulation, social welfare programs, and natural resources management. Nevertheless, many of the agency decisions advancing these policies remain subject to the requirements of either the federal Administrative Procedure Act or the states' parallel statutes. Adaptive management theorists have identified several features of such Administrative law requirements-especially public participation, judicial review, and finality-as posing barriers to true adaptive management, but they have put forward no proposals for reform.This Article represents the first effort in adaptive management theory to go beyond complaining about the handcuffs Administrative law puts on adaptive management and to suggest a solution. The Article begins by explaining the theory and limits of adaptive management to emphasize that it is not appropriate for all, or even most, agency decisionmaking. For appropriate applications, however, we argue that conventional Administrative law has unnecessarily shackled effective use of adaptive management. We show that through a specialized "adaptive management track" of Administrative Procedures, the core values of Administrative law can be implemented in ways that much better allow for adaptive management. Going further, we propose and explain draft model legislation that would create such a track for the specific types of agency decisionmaking that could benefit from adaptive management.The Administrative style that has charActerized American public law from the New Deal to the 1980s has been out of favor in recent years.-Charles Sabel and William Simon1I. INTRODUCTIONIn the never-ending project to build a better regulatory state mousetrap, two of the most seductive reinvention models to emerge over the past few decades have been market-based regulation2 and adaptive management.3 Representative of two broad and opposing thrusts of regulatory reform, one advocating "minimalism"4 and the other "experimentalism,"5 market-based regulation and adaptive management originate from the same premise but move in starkly different directions. This Article examines the path that adaptive management has taken and proposes how to steer it out of a dead end by changing the inner workings of Administrative law.The starting point for both regulatory reform models is the depiction of Administrative agencies as having become boxed into a decisionmaking process that depends heavily on a culture of comprehensive rational planning and prescriptive regulation.6 The dominant decisionmaking method used to implement this regime relies heavily on two related attributes: (1) the use of "front-end" analytical tools comprehensively conducted and concluded prior to finalizing the decision, and (2) the assumption of a robust capacity to predict and assess the market and nonmarket impActs of any proposed Action.7 However, this approach constrains agency flexibility by demanding hyperdetailed predecisional impAct assessments, intense public participation during the decisionmaking process, and postdecision hard look judicial review.8 The combined effect of this procedural gauntlet, codified in large part through the federal Administrative Procedure Act ("APA")9 and its state counterparts, has been to channel self-preserving agencies into cramming all that could possibly be thought or dreamed about Actions they carry out, fund, or authorize into single-shot, all-encompassing decision extravaganzas. Especially in rulemaking, this impetus toward up-front comprehensiveness strongly encourages agencies to steamroll their decisions through public-comment scrutiny and judicial review litigation and then never look back. …
Anne Joseph Oconnell - One of the best experts on this subject based on the ideXlab platform.
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the lost world of Administrative law
Social Science Research Network, 2014Co-Authors: Daniel A Farber, Anne Joseph OconnellAbstract:The reality of the modern Administrative state diverges considerably from the series of assumptions underlying the Administrative Procedure Act (APA) and classic judicial decisions that followed the APA reviewing agency Actions. Those assumptions call for statutory directives to be implemented by one agency led by Senate-confirmed presidential appointees with decision-making authority. The implementation (in the form of a discrete Action) is presumed to be through statutorily mandated Procedures and criteria, with judicial review to determine whether the reasons given by the agency at the time of its Action match the delegated directions. This is the lost world of Administrative law, though it is what students largely still learn. Today, there are often statutory and executive directives to be implemented by multiple agencies often missing confirmed leaders, where ultimate decision-making authority may rest outside of those agencies. The process of implementation is also through mandates in both statutes and executive orders, where the final result faces limited, if any, oversight by the courts. The mismatch has consequences for the legitimacy and efficacy of the federal bureaucracy: some positive, many negative. Because we do not think a return to the lost world is possible or perhaps even desirable, we propose some possible reforms in all three branches of the federal government to strengthen the match between current realities and Administrative law and to further Administrative law’s objectives of transparency, rule of law, and reasoned implementation of statutory mandates. We also hope that the proposed reforms can help foster the public interest goals of modern regulation, such as environmental quality or financial stability. We realize that many scholars and probably at least some judges are aware that formal Administrative Procedures, official records, and judicial review are only part of the dynamics of Administrative governance. But Administrative law, as developed by the courts and in governing statutes, has not meaningfully confronted the contemporary realities of the Administrative state. It thus risks becoming irrelevant to the quality of governance.
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the lost world of Administrative law
Texas Law Review, 2014Co-Authors: Daniel A Farber, Anne Joseph OconnellAbstract:Author(s): Farber, DA; O'Connell, AJ | AbstrAct: The reality of the modern Administrative state diverges considerably from the series of assumptions underlying the Administrative Procedure Act (APA) and classic judicial decisions that followed the APA reviewing agency Actions. Those assumptions call for statutory directives to be implemented by one agency led by Senate-confirmed presidential appointees with decision-making authority. The implementation (in the form of a discrete Action) is presumed to be through statutorily mandated Procedures and criteria, with judicial review to determine whether the reasons given by the agency at the time of its Action match the delegated directions. This is the lost world of Administrative law, though it is what students largely still learn. Today, there are often statutory and executive directives to be implemented by multiple agencies often missing confirmed leaders, where ultimate decision-making authority may rest outside of those agencies. The process of implementation is also through mandates in both statutes and executive orders, where the final result faces limited, if any, oversight by the courts. The mismatch has consequences for the legitimacy and efficacy of the federal bureaucracy: some positive, many negative. Because we do not think a return to the lost world is possible or perhaps even desirable, we propose some possible reforms in all three branches of the federal government to strengthen the match between current realities and Administrative law and to further Administrative law's objectives of transparency, rule of law, and reasoned implementation of statutory mandates. We also hope that the proposed reforms can help foster the public interest goals of modern regulation, such as environmental quality or financial stability. We realize that many scholars and probably at least some judges are aware that formal Administrative Procedures, official records, and judicial review are only part of the dynamics of Administrative governance. But Administrative law, as developed by the courts and in governing statutes, has not meaningfully confronted the contemporary realities of the Administrative state. It thus risks becoming irrelevant to the quality of governance.