Judge Ginsburg on the Path of Administrative Law

The latest issue of the Georgetown Journal of Law & Public Policy contains a speech that Judge Ginsburg delivered in 2011 on the work of the D.C. Circuit.

Judge Ginsburg gave the empirically rich remarks upon receiving a lifetime achievement award from the Georgetown Federalist Society last year.  (He took senior status a few months after what he called “the gentle nudge implied by a Lifetime Service Award.”)

The most interesting part of the article may be its analysis of the evolution of the court’s administrative law docket as compared to the other courts of appeals:

[T]he share of our docket devoted to review of administrative agency decisions has shrunk from fifty-two percent at its high point in 1987 to a low of twenty-seven percent in 2009 and thirty-two percent [in 2010]. . . .

Nationwide, in 1988 there were 2,899 cases arising from decisions of administrative agencies (other than the aforementioned two) filed in the courts of appeals. As in the D.C. Circuit, the number then declined, reaching a low of 1,052 in 2009 and 1,062 in 2010. This decline was much sharper than the decline in D.C., with the result that petitions for review of administrative decisions filed in the D.C. Circuit have increased from twenty-eight percent of the national total in 1986 to a high of thirty-eight percent in 2007 and thirty-six percent in 2010. Although the percentage has bounced around somewhat, there is a clear upward trend . . . . In consequence, the D.C. Circuit has become a relatively specialized court in the area of administrative law.

Perhaps an explanation for our increasing “market share” lies in the rate at which the D.C. Circuit has reversed the decisions of administrative agencies and hence attracted challenges to agency decisions. Since the Supreme Court in Chevron v. NRDC called for greater judicial deference to an agency’s interpretation of the statutes it administers, the D.C. Circuit has remained more likely than the other circuits to reverse an agency decision. The trend since Chevron has been for an ever-increasing reversal rate in the D.C. Circuit even as the national reversal rate has declined. To wit, the reversal rate in D.C. from 1980 through 1985 was 14.22% but has been 22.93% in the years since; the national reversal rate from 1980 through 1985 was 19.22%, but has been only slightly above 15% since then.

Judge Ginsburg also observes significant declines, since the 1980s, in the number of dissents and en banc rehearings in the D.C. Circuit, and in the length of the court’s opinions.  These trends, he says, are causes as well as effects of the D.C. Circuit’s improved collegiality.

Hon. Douglas H. Ginsburg, Remarks Upon Receiving the Lifetime Service Award of the Georgetown Federalist Society Chapter, 10 Georgetown J. of L. & Pub. Pol’y 1 (2012)

But see:

  • Michael Greves, The Twilight of Administrative Law?, Library of Law & Liberty (April 10, 2012) (“Here’s the problem: an equilibrium may be good or bad. And a powerful case can be made that the D.C. Circuit’s collegial, no-one-knows-what-Chevron-means-but-it’s-all-that-there-is-and-we-know-how-to-run-it equilibrium is woefully inadequate to the problems of the contemporary administrative state. By any measure, the creation of a global warming regime under the Clean Air Act, the Patient Protection Act, and Dodd-Frank herald a monumental expansion of the administrative state, coupled with a huge array of institutional innovations. . . .  My principal worry—and it’s a worry, not an empirical observation that could withstand Ginsburgian rigor—is that the D.C. Circuit’s AdLaw may have become too disconnected from rule-of-law values to be of much service in an environment for which it wasn’t intended or designed, and which it could not anticipate.”)

One response to “Judge Ginsburg on the Path of Administrative Law

  1. Pingback: Is the D.C. Circuit Too Small To Go En Banc? |

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