Nina Mendelson

• University of Michigan

As Professor Anne O'Connell has effectively documented, the delay in Senate confirmations has resulted in many vacant offices in the most senior levels of agencies, with potentially harmful consequences to agency implementation of statutory programs. This symposium contribution considers some of those consequences, as well as whether confirmation d...

Concerns have recently been raised that US federal agencies may sometimes avoid regulatory review by the White House Office of Information and Regulatory Affairs (OIRA). In this article, we assess the seriousness of such potential avoidance, and we recommend a framework for evaluating potential responses. After summarizing the system of presidentia...

To save resources and build on private expertise, federal agencies have incorporated privately drafted standards into thousands of federal regulations-but only by "reference." These standards range widely, subsuming safety, benefits, and testing standards. An individual who seeks access to this binding law generally cannot freely read it online or...

This essay is a reply to Rulemaking v. Democracy: Judging and Nudging Public Participation that Counts, by Cynthia Farina, Mary Newhart, and Josiah Heidt. That article engages my 2011 argument that when agencies conduct notice-and-comment rulemaking involving value judgments, agencies should take more seriously large volumes of public comments – or...

The 2008 presidential transition was accompanied by a familiar pattern of midnight rulemaking. Shortly before leaving office, executive branch agencies in the administration of President George W. Bush issued a host of final rules, many on controversial subjects. In late No vem ber and De-cem ber 2008 alone, the following rules, among others, were...

Agency notice-and-comment rulemaking has been widely claimed to strengthen public participation and the democratic nature of governmental decision making. These claims have intensified as agencies have gained greater discretion over economic and health, safety, and environmental rules, as websites and e-mail have facilitated increasingly high level...

Several scholars, most recently and extensively Kevin Stack of Vanderbilt, have argued that statutes authorizing action by the “Secretary” or “Administrator,” without mention of the President, are properly read to deprive the President of directive authority over those executive officials’ decisions. Some have argued that reading delegations to a “...

During the Bush II Administration, the Federal Railroad Administration (FRA), the federal agency charged with overseeing railroad safety, aggressively asserted the preemptive authority of its regulations, continuing to write broad preemption language into the preambles to its rules asserting that injured parties have no ability to seek compensation...

Scholars and courts have been divided on whether presidential supervision enhances the legitimacy of the administrative state. For some, that the president can supervise administrative agencies is key to arguing that agency action is legitimate, because the president’s accountability to the electorate. Others, however, have argued that such supervi...

The United States' presidential transition period is too long. Scholarship to date has focused primarily on the difficulties raised by an outgoing president's "midnight rulemaking" and related actions during the transition period. This brief essay suggests refocusing the discussion upon the actions of the incoming president-elect during the transit...

In Administrative Law's Federalism: Preemption, Delegation, and Agencies at the Edge of Federal Power (Duke Law Journal, forthcoming 2008), Brian Galle and Mark Seidenfeld argue that agencies possess important advantages, compared with Congress and the courts, in considering whether federal law should preempt state law. They point to the relative t...

In a variety of settings, including homeland security, pharmaceutical regulation, and automotive safety, federal agencies have recently taken aim at state tort and regulatory law. Agencies have declared state law an "obstacle" to federal goals by stating that state law is preempted or by declaring that the agency possesses the authority to preempt...

Today's legal debates about federalism, as it applies to issues of health and safety and to the environment, are often debates about statutory preemption. This essay focuses on Congress's preemption power and examines the most common legal and theoretical issues surrounding its use. The two most important questions about preemption are related. The...

The extensive contracting out of government functions, such as the operation of nuclear energy facilities, preparation of government budgets, and even oversight of government contracts themselves, has raised great concern about contractor accountability. This chapter identifies some particular issues of contractor accountability, including accounta...

Administrative agencies frequently use guidance documents to set policy broadly and prospectively in areas ranging from Department of Education Title IX enforcement to Food and Drug Administration regulation of direct-to- consumer pharmaceutical advertising. In form, these guidances often closely resemble the policies agencies issue in ordinary not...

Administrative agencies frequently use guidance documents to set policy broadly and prospectively, in areas ranging from Education Department Title IX enforcement to FDA regulation of direct-to-consumer pharmaceutical advertising. In form, these guidances closely resemble those agencies issue in ordinary notice-and-comment rules, although guidances...

This Article examines executive branch agency actions concluded just before a new President takes office, such as "midnight" rulemaking and late-term hiring and promotion, which Professor Mendelson collectively refers to as "agency burrowing." Congress, the media, and some commentators have portrayed such activities as unsavory power grabs that und...

Some commentators defend limited shareholder liability for torts and statutory violations as efficient, even though it encourages corporations to overinvest in and to externalize the costs of risky activity. Other propose pro rata unlimited shareholder liability for corporate torts. Both approaches, however, fail to account fully for qualitative di...

Some commentators defend limited shareholder liability for torts and statutory violations as efficient, even though it permits corporations to externalize the costs of risky activity and encourages overinvestment in such activity. Others propose its replacement with pro rata unlimited shareholder liability for corporate torts. Both approaches, howe...

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