This Article is a rejoinder to Professors David J. Barron and Todd D. Rakoff’s article, In Defense of Big Waiver, recently published in the Columbia Law Review. “Big Waiver” provisions, which figure prominently in the “No Child Left Behind” and the “Obamacare” legislation, authorize administrative agencies to displace the regulatory baseline established by Congress. Propounding a defense of big waiver statutory provisions, Barron and Rakoff ground their argument in James Landis’s seminal work, The Administrative Process. This Article shows, however, that Barron and Rakoff’s defense is misguided because it ignores Landis’s work’s focal point, the concept of administrative expertise, which had been widely discredited post-Landis. This Article offers instead an innovative, alternative justification for big waiver regulation, which draws on Louis Jaffe’s construction of a decentralized, inter-branch dialogic theory of regulation. Therefore, this Article operates on three levels. On one level, it is a response to Barron and Rakoff. On a second level, the Article offers an in-depth innovative analysis of the writings of two of the most influential thinkers on regulation, Landis and Jaffe. In doing so, the Article questions the pervasive understanding of Landis’s work and promotes a novel reading of both Landis’s and Jaffe’s scholarship. On yet a third level, this Article charts the contours of a new regulatory framework for the twenty-first century, which is rooted in the work of Jaffe.
A Better Defense of Big Waiver: From James Landis to Louis Jaffe,
98 Marq. L. Rev. 697
Available at: http://scholarship.law.marquette.edu/mulr/vol98/iss2/3