The United States Code and Code of Federal Regulations are replete with detailed provisions granting agencies engaged in adjudication the power to reopen their own final judgments. The question addressed in this paper is whether federal agencies can and should have the power to reconsider their final decisions in the absence of an express grant of authority in a statute or regulation. Federal courts have generally said that federal agencies do possess the “inherent” power to reconsider in most circumstances. Part I of this paper provides the first comprehensive overview of the doctrine of administrative reconsideration and shows where federal courts are more or less likely to find that the presumption of inherent power holds. Part I concludes with a brief overview of state law in this area, with particular focus on the division among state courts over whether state agencies possess an inherent power to reconsider. Part II considers whether the inherent power to reconsider is justified for federal agencies and presents three arguments to show that it is not. First, and most importantly, while various Supreme Court precedents have been marshaled in support of an inherent power to reconsider, a more thorough reading of these cases indicates that they may in fact foreclose it. Second, Congress and agencies have pervasively regulated in the area of administrative reconsideration to such an extent that an inherent power to reconsider should be heavily disfavored. Third, an inherent power to reconsider is normatively unattractive because it fosters considerable procedural uncertainty. The paper concludes by setting out a more appropriate yet modest rule: Federal administrative agencies should only have the power to reconsider adjudications when that power has been expressly granted by Congress, or when an agency has promulgated a valid reconsideration provision pursuant to its rulemaking processes.
Issue 7
A Simple Proposal to Halve Litigation Costs
This essay discusses a simple proposal that could reduce litigation costs in the country by about half, yet without compromising the functioning of the liability system in a significant way. Under the proposal (1) only half the cases brought before a court would be randomly chosen for litigation, and (2) damages would be doubled in cases accepted for litigation. The first element of the proposal saves litigation costs and the second preserves deterrence of undesirable behavior. The effect of the proposal on settlement is emphasized, one important implication of which is that settlement is likely to occur before cases are filed (and possibly randomly eliminated), in which event plaintiffs will definitely be compensated.
Constitutional Calcification: How the Law Becomes What the Court Does
This Article articulates and explores an important distinction in constitutional law: the distinction between the requirements of the Constitution (“constitutional operative propositions”) and the rules that courts apply to decide whether those requirements have been violated (“constitutional decision rules”). The distinction has long been recognized, but until recently there have been few systemic investigations of its origin and consequences. The article first offers a sustained analysis of the factors that drive courts to create particular sorts of decision rules to enforce constitutional operative propositions. It then uses this account of the justification for different kinds of decision rules to explain and critique the Court’s jurisprudence in a number of different areas of constitutional law: the Commerce Clause, the Equal Protection Clause, the Free Exercise Clause, constitutional criminal procedure, and Section Five of the Fourteenth Amendment. Last, it explores a particular pathology that has thus far escaped attention. As doctrine becomes stable, the Court consistently begins to treat its decision rules as though they were operative propositions. This mistake has grave consequences, both for the soundness and coherence of doctrine and for the Court’s institutional role. By highlighting the consequences of confusing decision rules and operative propositions, the Article offers a fresh and useful perspective on controversial areas of constitutional law.