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Unpacking the Force of Law
Abstract
In 2011, in Mayo Foundation for Medical Education and Research v. United States, the Supreme Court held that general authority Treasury regulations adopted using notice-and-comment rulemaking carry the force of law and thus are eligible for Chevron deference. In the wake of Mayo, courts and scholars are now struggling with its implications for whether temporary Treasury regulations and IRB guidance documents (revenue rulings, revenue procedures, and notices) that lack notice and comment but are enforceable through civil penalties are likewise eligible for Chevron deference and, relatedly, whether these formats are in fact subject to APA notice-and-comment rulemaking requirements. Currently prevailing judicial tests for evaluating these questions do not offer clear or easy answers for the tax context. Ultimately, both questions turn on whether the agency actions in question carry “the force of law.” The purpose of this Article is to take a step back from existing doctrinal standards and to sort through the basic administrative law principles and Supreme Court precedents that drive those standards in an effort to develop a coherent approach to Treasury and IRS rulemaking and judicial review thereof.
A version of this article is being published in Geo. Mason Law Review, vol. 28, issue 2 (2021).
This Article explains the evolution of rulemaking from a relatively infrequent method of guiding executive action to the engine for a massive regulatory system that both complements and substitutes for congressional lawmaking. It sketches the way in which the APA’s few, simple procedural requirements helped pave the way for a shift from adjudication to rulemaking as the major force in administrative action. And it explains the increasing emphasis in academic commentary on the intersection between rulemaking and democracy—and the increasing use of analogies comparing rulemaking to legislating. This emphasis is understandable in light of the transformation of rulemaking in practice, but analogies to legislating are deeply flawed, for both constitutional and pragmatic reasons. The Constitution clearly and pointedly restricts lawmaking to a specific process that requires consensus among officials selected at different times in different ways by different constituencies, and efforts to shift lawmaking to administrative officials cannot be reconciled with that system. That observation is at once the reason for the increasing debate over legal constraints on dispersion of lawmaking authority and also the nub of the objection to the rulemaking-as-legislating analogy. After discussing the problematic aspects of that analogy, this Article suggests a return to a different understanding of the rulemaking authority that can be reposed in administrators’ hands. The Article explains that this change is necessary to make rulemaking more akin to the tool the APA’s creators imagined and defends that goal as both true to the proper implementation of the statute and better aligned with the constitutional structure that frames American administrative law.
In many areas of innovation, the United States is a leader, but this characterization does not apply to the United States' position in assisted reproductive technology innovation and clinical use. This article uses a political science concept, the idea of the “democratic deficit” to examine the lack of American public discourse on innovations in ART. In doing so, the article focuses on America's missing public consultation in health care innovation. This missing discourse is significant, as political and ethical considerations may impact regulatory decisions. Thus, to the extent that these considerations are influencing the decisions of federal agency employees, namely those who work within the U.S. Food and Drug Administration, the public is unable to participate in the decision-making process. This lack of a public discourse undermines the goals of the administrative state, which include democratic participation, transparency, and accountability.
The United Kingdom, on the other hand, has had a markedly divergent experience with assisted reproductive technology innovation. Instead of ignoring the various ethical, social, and legal issues surrounding assisted reproductive technology innovation, the United Kingdom engaged in a five-strand public consultation on the topic of mitochondrial transfer, a form of assisted reproductive technology that uses genetic modification in order to prevent disease transmission. This article argues that after a multi-decade standstill in terms of the public discourse related to ethical issues associated with assisted reproductive technology and germline modification, it is time for the United States to institute a more democratic inquiry into the scientific, ethical, and social implications of new forms of assisted reproductive technology and ultimately, forthcoming medical innovations that involve genetic modification.
When a sexual abuse scandal rocked Penn State, when Apple was found to have engaged in anticompetitive behavior, and when servicers like Bank of America improperly foreclosed upon hundreds of thousands of homeowners, each organization entered into a “Modern-Day Monitorship.” Modern-day monitorships are utilized in an array of contexts to assist in widely varying remediation efforts. This is because they provide outsiders with a unique source of information about the efficacy of the tarnished organization’s efforts to resolve misconduct. Yet, despite their use in high profile and serious matters of organizational wrongdoing, they are not an outgrowth of careful study and deliberate planning. Instead, modern-day monitorships have been employed in an ad-hoc and reactionary manner, which has resulted in repeated instances of controversy and calls for reform. Underlying these calls for reform has been an implicit assumption that broad-based rules can effectively regulate all monitorships.Yet, when tested, this assumption is found lacking. This Article traces the rise of the modern-day monitorship and, for the first time, analyzes the use of monitorships in five different contexts. The analysis demonstrates that modern-day monitorships have experienced a rapid evolution with important consequences. First, as the Apple monitorship demonstrates, this evolution has changed the manner in which courts and lawyers conceive of the appropriate boundaries and norms for court-ordered monitorships. Second, as the Penn State scandal reveals, private organizations are co-opting the use of monitorships, which may transform the nature of monitorships from a quasi-governmental enforcement mechanism to a privatized reputation remediation tool. Third, monitorships fall into different categories based on the type of remediation effort the monitorship is meant to achieve. Because these different categories necessitate different monitorship structures to achieve the goals of each monitorship, attempts to adopt universal rules governing monitorships may be misguided. In short, differences matter when evaluating monitorships.
Chevron is surely one of the most influential doctrines of administrative law. Both in judicial opinions and the scholarly literature, its original insights and subsequent evolution have contributed much to our understanding of the roles of the "four" branches, especially as those roles relate to judicial review. But what does Chevron have to say about the many agency behaviors that are relatively insulated from review? The vast majority of agency policymaking decisions never reach court; for example, they might not be "final" or even "action," or they may pose standing or ripeness difficulties for would-be petitioners. This Essay argues that Chevron's impact might reach even these rarely reviewed types of agency behavior. Descriptively, this claim is supported by an analysis of judicial opinions applying Chevron principles to assess agency actions that are not interpretations of organic statutes. Normatively, this claim challenges administrative law to turn its focus to agencies' unreviewable discretionary space, where a Chevron lens offers important insights about the extent to which agencies can construct their own legitimacy.
Federal agencies routinely explain their interpretations of statutes and regulations at the request of regulated parties and members of Congress in order to increase predictability and transparency. The Administrative Procedure Act explicitly carves out exceptions in the rulemaking process for these interpretative rules and general statements of policy. Until recently, procedural hurdles usually insulated informal agency statements from legal challenge, leaving agencies free to exercise discretion and balance political pressures from the elected branches. However, in Iowa League of Cities v. EPA, the Eighth Circuit limited this flexibility by characterizing a statement in a letter to a Senator as a new legislative rule that exceeded EPA's authority under the Clean Water Act. This Note traces a decade of EPA sewage policy through the informal political process to demonstrate that the Eighth Circuit's decision to vacate EPA'spolicy undermined administrative and political accountability.
The IRS issues different types of guidance to taxpayers, and the extent to which taxpayers can rely on IRS guidance depends on the form in which it was offered. For instance, taxpayers generally cannot rely on oral advice provided over the phone but can rely on more formal types of advice. The current state of the law harms unsophisticated taxpayers who disproportionately obtain informal advice - the least reliable type of IRS guidance. Existing literature lacks a thorough discussion of why, as a policy matter, we allow taxpayers to rely on some forms of IRS guidance more than others. This Article fills that gap by suggesting and critically evaluating potential justifications for this practice. As the analysis in this Article reveals, while a number of potential justifications are ultimately unconvincing, others are persuasive. Given the existence of several satisfactory justifications, the practice of disallowing reliance on informal guidance ought to be continued with some critical modifications. In particular, this Article proposes specific reform options that would assist unsophisticated taxpayers without undermining any compelling justifications for generally forbidding reliance on informal advice.
Recent events have highlighted the difficulties the Internal Revenue Service faces when attempting to ensure that purportedly tax-exempt organizations in fact qualify for that status. The problems in this area go much deeper than a group of IRS employees subjecting certain organizations to greater scrutiny based on their political leanings, however. For decades members of the public, the media, the academy, and Congress have criticized the limited ability of the IRS to ensure that organizations claiming exemption from federal income tax in fact deserve that categorization. Yet examples of IRS failings in this area continue to arise with depressing frequency. This is not surprising given that oversight of exempt organizations is but one of many areas that suffers from major difficulties faced by the IRS as a whole, including shrinking resources, growing responsibilities, and increasing responsibility for determinations that go beyond those necessary for revenue collection. As detailed in Part I of this Article, these difficulties have rendered the IRS unable to keep pace with the growth of the exempt organizations sector over the past 40 years.
One of the latest such initiatives suggests a new approach, however. In 2014 the IRS introduced the much shorter and simpler Form 1023-EZ application for nonprofit organizations that claim exempt charitable status and expect to have only modest financial resources, accompanied by faster procedures for handling all applications for recognition of exemption. These innovations represent the first significant permanent reduction in the level of oversight the IRS provides in this area since the introduction of a shorter version of the annual information return required for most exempt organizations. The questions they raise are whether such a reduction of oversight is in fact prudent, and whether other reductions might also be advisable. Part II of this Article draws on tax compliance literature to explore how the current level and methods of oversight for exempt organizations could be modified to improve compliance even given the existing resource constraints. It concludes that while marginal improvements in oversight are possible, there is no silver bullet to counter the IRS’s growing inability to oversee this area.
Part III of this Article therefore turns to more radical proposals that would move the locus of oversight for exempt and particularly charitable organizations out of the IRS. The proposal that shows the most promise, but also is the most risky, would shift much of this role to a private, self-regulatory body overseen by the IRS. The current crisis highlights the need to pursue this proposal now.
The Supreme Court often confronts the choice between bright-line rules and open-ended standards — a point well understood by commentators and the Court itself. Far less understood is a related choice that arises once the Court has opted for a standard over a rule: May lower courts develop subsidiary rules to facilitate their own application of the Supreme Court’s standard, or must they always apply that standard in its pure, un-“rulified” form? In several recent cases, spanning a range of legal contexts, the Court has endorsed the latter option, fortifying its first-order standards with second-order “rules against rulification.” Rules against rulification are a curious breed: They promote the use of standards, but only in a categorical, rule-like manner. The existing literature on the rules-standards dilemma thus sheds only limited light on the special problems that anti-rulification rules present. This Article addresses these problems head-on, disentangling the (often unintuitive) consequences that result from the Court’s adoption of anti-rulification rules, while also offering practical suggestions as to when and how these rules should be deployed. Overall, the Article’s take is qualifiedly negative: Anti-rulification rules, while useful in some circumstances, carry the undesirable and often unnecessary consequence of cutting lower courts out of the lawmaking loop. And that in turn impedes the Court’s own ability to refine and develop its standards over time. The Court should therefore pronounce rules against rulification only sparingly, and lower courts should identify them only begrudgingly.
This article explores the unique separation-of-powers issues raised in the immigration context, focusing on the respective powers of Congress and the President to preempt State law. Pursuant to traditional understanding, Congress and only Congress is constitutionally vested with the authority to displace conflicting State laws. Outside of the immigration context, the Supreme Court nonetheless has invoked competing theories of executive power to justify extending preemptive effect to executive decisions, while at the same time imposing significant doctrinal restrictions on its exercise. In its recent decision in Arizona v. United States, however, the Court departed from these existing doctrinal restrictions to hold that a conflict with the potential exercise of executive prosecutorial discretion suffices to displace State law. In doing so, it signaled an unprecedented expansion of the executive’s power to preempt, one without apparent limit. This article argues that considerations unique to immigration law undermine the utility of existing doctrinal frameworks for limiting executive preemption. Nonetheless, some restriction remains warranted. Given the limitations of the existing doctrines, it proposes a new approach to cabining executive authority in this context.
Administrative preemption is a convenience and contrivance for modern government. But, as uncovered here, it is also a constitutional paradox. Specifically, in the federalism context the Court treats agency action as preemptive under the Supremacy Clause, which provides that certain federal “Laws” shall be supreme over state law. However, if agency action qualifies as “Law,” then it should be void under separation-of-powers principles (and thus ineligible to preempt state law). Meanwhile, if agency action does not qualify as “Law” (thus avoiding a separation-of-powers problem), then it should fall beyond the Supremacy Clause’s purview. Paradoxically, administrative preemption requires that agency action simultaneously qualify as (1) “Law” for federalism purposes and (2) “not Law” for separation of powers. The Founders surely never intended this. Although much has changed since then, resort to the Court’s interpretive glosses for modern government fare no better. For instance, if the Court’s premise behind administrative preemption is that agencies make “Law,” then how should we understand the Court’s longstanding insistence otherwise in the separation-of-powers context? And, if unelected administrative officials can displace state law in Congress’s stead, what are we to make of the Court’s heralded political-safeguards theory of federalism? These inquests underscore the difficulty of settling on a constitutional premise that is both broad enough to justify administrative preemption, yet narrow enough to preserve the Court’s legitimating theories of modern government. Perhaps administrative preemption is right, and the Court’s legitimating glosses for modern government are wrong. Or perhaps the inverse is true. This Article’s insight is that these cannot all be right — at least not without a new constitutional bargain.
Tax exceptionalism — the view that tax law does not have to play by the administrative law rules that govern the rest of the regulatory state — has come under attack in recent years. In 2011, the Supreme Court rejected such exceptionalism by holding that judicial review of the Treasury Department’s interpretations of the tax code is subject to the same Chevron deference regime that applies throughout the administrative state. The D.C. Circuit followed suit by rejecting the IRS’s position that its notices are not subject to judicial review under the Administrative Procedure Act (APA). This Article calls for the demise of another instance of tax exceptionalism: the United States Tax Court’s longstanding view that it is not governed by the APA.In addition to presenting the legal case against Tax Court exceptionalism, the Article explores administrative law and tax policy considerations that favor the Tax Court following traditional administrative law, including consistent application of the law, efficient allocation of resources, horizontal and vertical equity, comparative agency expertise, and a proper separation of powers. Moreover, by following administrative law principles that may be more deferential to the IRS in a particular case, the Tax Court can establish a richer dialogue with the IRS to improve agency procedures and decision-making — thus advancing tax policy’s interest in protecting less sophisticated taxpayers while increasing economic efficiency. With a growing circuit conflict as to whether the Tax Court is bound by the APA, the Tax Court should reverse course now before the Supreme Court intervenes to declare the death of tax exceptionalism in yet another area of tax law.
The Internal Revenue Code is an important source of federal tax law, but it is not the only source. The U.S. Department of the Treasury and Internal Revenue Service issue important guidance, and federal courts interpret all of these authorities. This essay provides an overview of federal tax litigation, at both the trial and appellate levels, and discusses the interplay among Congress, the Treasury, and the judiciary in developing federal tax law.
This Article offers a comprehensive examination of the Skidmore standard for judicial review of agency legal interpretations as applied by the courts in the period since the Supreme Court revitalized Skidmore in United States v. Mead Corp. First, the Article documents an empirical study of five years worth of Skidmore applications in the federal courts of appeals. In the study, we evaluate two competing conceptions of Skidmore review - the independent judgment model and the theoretically more deferential sliding-scale model - and conclude that the appellate courts overwhelmingly follow the sliding scale approach. Also, contrary to two other, significantly more limited studies, we document that Skidmore review is highly deferential to agency interpretations of law, with agency interpretations prevailing in more than 60% of Skidmore applications. Drawing from the Skidmore applications studied, we then analyze more qualitatively how the appellate courts apply the Skidmore review standard as a sliding scale and identify where those courts are struggling to make sense of Skidmore's dictates within that model. To resolve the lower courts' difficulties, we propose re-conceptualizing Skidmore's sliding scale as balancing comparative agency expertise against the potential for agency arbitrariness. Finally, we note several burgeoning issues concerning the scope of Skidmore's applicability and offer preliminary thoughts for addressing those questions.
As a field of legal study and practice, administrative law rests on the premise that legal principles concerning agency structure, administrative process, and judicial review cut across multiple agencies. In practice, however, judicial precedents addressing the application of administrative law doctrines to a given agency tend to rely most heavily on other cases involving the same agency, and use verbal formulations or doctrinal approaches reflected in those cases. Over time, the doctrine often begins to develop its own unique characteristics when applied to that particular agency. These “agency-specific precedents” deviate from the conventional understanding of the relevant principles as a matter of administrative law and raise fundamental questions for administrative law scholars and practitioners.Our central thesis is that agency-specific precedents are a manifestation of the “silo effect,” a phrase commonly used in the literature concerning the operation of large organizations to describe the tendency of subdivisions to develop their own bureaucratic imperatives that create obstacles to information sharing and other forms of cooperation. After describing the emergence of administrative law as a body of generally applicable legal doctrine and introducing the silo effect and the related concept of information silos, the article presents five case studies of agency-specific precedents: (1) the treatment of “interpretive regulations” promulgated by the IRS; (2) the “reasoned decisionmaking” concept in judicial review of the FCC (and a few other agencies); (3) the requirement that EPA must docket ex parte communications of “central relevance” in rulemaking; (4) the treating physician rule in judicial review of SSA disability determinations; and (5) cases limiting the NLRB’s ability to overturn an administrative law judge’s credibility determinations based on demeanor. These agency-specific precedents cannot be fully explained by agency-specific statutes, programs, or practices that prompt specific judicial responses.We postulate that agency-specific precedents are a manifestation of the silo effect and discuss how the dynamics of information costs, the specialized bar, and the process of judicial review tend to produce them. Precedents are a type of information that is costly to gather and apply and whose value in litigation depends on its precedential weight or authority. Because attorneys who practice in most administrative law fields tend to be specialized, the information costs of finding and citing cases involving the agency are much lower than the costs of doing so for cases involving other agencies, while the precedential weight of decisions involving the agency will be higher than that of cases involving other agencies. Courts rely heavily on the attorneys litigating a case to gather and present information concerning precedent, so the information costs of finding and analyzing precedents outside the agency in question will be passed along to the courts. In addition to considering the dynamic that contributes to the formation of agency-specific precedents, we discuss their normative implications in terms of consistency with statutory provisions (particularly the APA), promoting legal certainty, and the development of optimal administrative law doctrines. Although the balance of costs and benefits from agency-specific precedents varies according to the circumstances, some agency-specific precedents would appear to be unjustified. We suggest that greater attention to the phenomenon by attorneys, courts, and scholars would help to break down such undesirable agency-specific precedential silos.
The Supreme Court recently held in United States v. Mead Corp. that agency interpretations should receive Chevron deference only when Congress has delegated power to the agency to make rules with the force of law and the agency has rendered its interpretation in the exercise of that power. The first step of this inquiry is difficult to apply to interpretations adopted through rulemaking, because often rulemaking grants authorize the agency to make "such rules and regulations as are necessary to carry out the provisions of this chapter" or words to that effect, without specifying whether "rules and regulations" encompasses rules that have the force of law, or includes only procedural and interpretive rules. Mead therefore requires that courts decipher the meaning of facially ambiguous rulemaking grants., This Article argues that throughout most of the Progressive and New Deal eras, Congress followed a convention for signaling when an otherwise ambiguous rulemaking grant was intended to confer delegated authority to make rules with the force of law. Under this convention, rulemaking grants coupled with a statutory provision imposing sanctions on those who violate the rules were understood to authorize rules with the force of law; rulemaking grants not coupled with any provision for sanctions were understood to authorize only interpretive and procedural rules. Although this understanding can be detected in the Administrative Procedure Act of 1946 (APA), the Supreme Court's decisions construing rulemaking grants after the adoption of the APA betray no awareness of the convention. In the 1970s and early 1980s, the D.C. Circuit and Second Circuit, in an effort to encourage greater use of rulemaking, adopted in place of the convention a presumption that facially ambiguous rulemaking grants always authorize rules with the force of law. As a result, courts held that some agencies, such as the FTC, FDA, and NLRB, had legislative rulemaking powers that Congress almost certainly had not intended. Because the Supreme Court has never endorsed the presumption of the D.C. and Second Circuits, it is not constrained in the aftermath of Mead from drawing upon the original convention in discerning whether Congress intended to delegate power to make rules with the force of law. Strong arguments exist in favor of adopting the convention as a general canon for interpreting facially ambiguous rulemaking grants. Compared to the current approach that treats all rulemaking grants as presumptively authorizing legislative rules, the convention is generally more faithful to congressional intent and to constitutional values associated with the nondelegation doctrine. These advantages, however, must be weighed against the fact that adopting such a canon at this late date would almost certainly upset reliance interests, most prominently in the FDA context.
Bob Anthony and Tom McGarity both maki a number of important,perceptive points, and I find myself in substantial agreement witheach of them.
I have only two principal disagreements with Bob Anthony. First, Ibelieve that a court should not go behind the objective terms of a statementof agency policy to speculate about whether the statement was "reallyintended" to bind the public. If by its terms an agency's generalstatement of agency policy is limited to establishing general policies andexplicitly states that the policies must be justified de novo in subsequentapplications where the policies are challenged, then a court should notinvalidate the policies-on the grounds that, contrary to what the agency'sstatement says it is, the court thinks that it is "really" or "practically" a"non-rule rule" made without benefit of proper rulemaking procedures.
Second, I believe that courts should not attempt to force all agency policymakinginto the mold of notice-and-comment rulemaking. Noticeand-comment does not always provide genuine public participation inlegislative rulemaking; it is useful primarily as a record-making deviceand is generally employed when a rule is in near-final form.
This Note examines whether U.S. regulatory agencies frequently use guidance documents to issue policy decisions, avoiding the notice and comment process and other procedures normally required to issue rules. Legal scholars and recent presidential administrations both have debated this issue. This Note uses newly available data to conduct the first large-scale analysis of whether agencies actually abuse guidance. The Note investigates whether agency leaders: (1) issue guidance strategically; (2) use guidance to implement ideological policies; or (3) promulgate guidance on a large scale. The Note reports negative answers to these questions, suggesting that agencies do not frequently use guidance documents to avoid the rulemaking process.
In United States v. Mead Corp. the Supreme Court sought to prescribe a test for determining when the Chevron doctrine applies to agency interpretations of law. The Court got off to a good start, announcing that Chevron applies when Congress has delegated authority to an agency to make rules having the force of law, and the agency has adopted an interpretation pursuant to this authority. Unfortunately, the Court was less than clear about when Congress has delegated the required authority, applying a vague standard that incorporates such elements as whether Congress has directed the agency to use relatively formal procedures, whether the agency adopts a rule of decision that generalizes to more than a single case, and whether the agency's decisional rules apply uniformly throughout its jurisdiction. This paper argues that the scope of the Chevron doctrine should be governed by a meta-rule, rather than a multifactorial standard as suggested in Mead. The paper also proposes a meta-rule: Congress should be deemed to delegate authority to an agency to make rules with the force of law when Congress has provided by statute that agency action, once final, will give rise to sanctions, forfeitures, or other adverse legal consequences for parties who violate that action.
The Treasury Department and the Internal Revenue Service have a strange relationship with Administrative Procedure Act notice-and-comment rulemaking procedures. Treasury acknowledges the general applicability of APA procedural requirements when it promulgates regulations interpreting the Internal Revenue Code. Treasury also maintains that most Treasury regulations are exempt from the APA's public notice and comment requirements. Nevertheless, Treasury purports to utilize those same procedures anyway in promulgating most Treasury regulations. This Article documents a study of 232 separate Treasury regulation projects for which Treasury published Treasury Decisions and notices of proposed rulemaking in the Federal Register between January 1, 2003, and December 31, 2005. In connection with this study, this Article compares Treasury's actual practices and exemption claims with current doctrinal trends in courts evaluating compliance with APA requirements across administrative agencies. The Article documents the study's finding that, in 40.9% of the projects studied, Treasury failed to follow APA notice and comment requirements. The Article also concludes that, as interpreted by the courts, established exceptions from those requirements generally do not apply to excuse this noncompliance. Consequently, among other implications, many Treasury regulations, including some of Treasury's most complex and controversial rulemaking efforts, are susceptible to legal challenge for failure to adhere to APA rulemaking requirements.
One challenge for most scientists is avoiding and resolving issues that center around authorship and the publishing of scientific manuscripts. While trying to place the research in proper context, impart new knowledge, follow proper guidelines, and publish in the most appropriate journal, the scientist often must deal with multi-collaborator issues like authorship allocation, trust and dependence, and resolution of publication conflicts. Most guidelines regarding publications, commentaries, and editorials have evolved from the ranks of editors in an effort to diminish the issues that faced them as editors. For example, the Ingelfinger rule attempts to prevent duplicate publications of the same study. This paper provides a historical overview of commonly encountered scientific authorship issues, a comparison of opinions on these issues, and the influence of various organizations and guidelines in regards to these issues. For example, a number of organizations provide guidelines for author allocation; however, a comparison shows that these guidelines differ on who should be an author, rules for ordering authors, and the level of responsibility for coauthors. Needs that emerge from this review are (a) a need for more controlled studies on authorship issues, (b) an increased awareness and a buy-in to consensus views by non-editor groups, e.g., managers, authors, reviewers, and scientific societies, and (c) a need for editors to express a greater understanding of authors' dilemmas and to exhibit greater flexibility. Also needed are occasions (e.g., an international congress) when editors and others (managers, authors, etc.) can directly exchange views, develop consensus approaches and solutions, and seek agreement on how to resolve authorship issues. Open dialogue is healthy, and it is essential for scientific integrity to be protected so that younger scientists can confidently follow the lead of their predecessors.