Exploring the Regulatory World
From: Notice & Comment
by Jeffrey Pojanowski
I am administrative law scholar in the fustiest sense of the term. I write about judicial review of agency action, with a particular focus on questions of law. Yes. I am one of those bores who writes about Chevron. I do this while being well aware that so much (most?) of the important thinking in administrative law touches on questions that mostly don’t touch the courts: how Congress interacts with administrative agencies, how agencies interact and coordinate among themselves and with the White House, and how the internal dynamics of particular agencies operate. If you’re just shining your light on judicial review, you’re missing the dark matter that makes up most of the regulatory cosmos.
First, as indicated above, the book underlines how much regulatory action, including by U.S. actors, occurs abroad. Those who, like myself, also teach conflict of laws see the increasing prominence of the canon against extraterritorial application of U.S. law. One who only reads cases in which the Supreme Court declines to apply U.S. securities fraud, antitrust, and tort statutes abroad misses a much larger picture in which multilateral treatymaking and bilateral trade negotiations extend U.S. IP norms to legal regimes more skeptical of such protections. The administrative lawyer who focuses on courts, moreover, will also miss this picture, for such projection of U.S. legal norms usually flows through the executive’s foreign affairs powers or congressionally delegated discretion that is unreviewable.
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