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.
Note
A Litigation Association Model to Aggregate Mass Tort Claims for Adjudication
The judicial system does not adequately accommodate mass tort claims. Even the Rule 23 class action, which is otherwise a powerful aggregation tool, often fails to facilitate trying these claims. This Note argues that a combination of associational standing and statistical sampling produces a new and more effective means to aggregate mass tort claims for adjudication. Claimants can organize an unincorporated association; the association can file a suit seeking redress for its members’ injuries; and evidence can be presented in aggregated form. The proposal is a significant departure from the traditional method of representative litigation—the class action. Yet its predicates are, separately, well established. Moreover, this Note argues that aggregation through association may be preferable to aggregation through class action for several reasons: for example, it may reduce the cost of litigation and perhaps more significantly, it overcomes the choice of law problems that often prevent certification of a mass tort class action under Rule 23.
The relationship between associational standing and sampling is significant and has thus far gone unrecognized: Sampling allows aggregated evidence to take the place of individualized evidence and thereby overcomes the most significant limitation on the use of associational standing in damages actions. The proposal does not require satisfaction of the various prerequisites to class certification contained in Rule 23. The Note examines the history of representative group litigation and concludes, however, that those prerequisites are unnecessary where representation is based on consent (as it is in this Note’s proposal) as opposed to a common interest (what underlies Rule 23).
Specialize the Judge, Not the Court: A Lesson from the German Constitutional Court
The federal courts of appeals are in the midst of a crisis. The exploding volume of cases in those courts and the increasing complexity of the law present a real threat to the quality of appellate justice. Borrowing Adam Smith’s basic insight about the division of labor, many commentators have argued that the federal appellate courts might manage this crisis through greater specialization. The particular mode of specialization that has come into favor is the establishment of appellate courts with limited and exclusive jurisdiction over a set of subject matters. An example of such a court is the Court of Appeals for the Federal Circuit, and the apparent success of this court in the rationalization and harmonization of patent law has engendered proposals for many other specialized courts of appeals.
However, there are a host of problems with relying on such “specialized courts,” including judicial “tunnel vision,” the lack of cross-pollination of legal ideas, judicial capture by special interests, and excessive judicial policymaking. Commentators often defend their proposals for more specialized courts by pointing to the success that some European countries have had with highly specialized appellate judiciaries. But the apparent success of the European experience with specialized courts may be peculiar to the civil law philosophy of judging; borrowing a distinctly civil law solution for the American common law landscape may not be successful.
This Note proposes a different mode of specialization: staffing cases with a mix of expert and non-expert judges. The German Constitutional Court has used a similar system for many years. Since this solution is being borrowed from a constitutional court, which is far more like an American court than a civil law court, problems of translation are reduced. The proposal balances our desire for generalist judges with the need for judicial expertise as law grows increasingly complex. It helps solve the problem of exploding caseloads by allowing the federal appellate courts to take on more judges without sacrificing intra-circuit coherence of federal law. It achieves the goal of expertise by leveraging the differing abilities and interests of appeals court judges. While doing all this, the proposal also avoids many of the problems with the use of specialized courts of limited, exclusive jurisdiction.