Document Type

Article

Publication Title

Yale Law Journal

Abstract

In their Comment on our article, two of the lead counsel representing the plaintiff class in the pending Stieberger v. Sullivan litigation against the Social Security Administration (SSA) articulate the view that intracircuit nonacquiescence is per se unlawful and may be routinely subject to court injunctions regardless of the reasonableness of the agency's litigation position or the extent of disagreement among the courts of appeals over the merits of its substantive policy. The commentators' argument rests on two premises that are fundamentally inconsistent with central features of our Federal legal system. Their conception of the regional courts of appeals as independent, essentially unsupervised fiefdoms reflects a flawed understanding of the relationship among the Federal courts of appeals, and between these courts and the Supreme Court. Similarly, their implicit analogy between administrative agencies and district courts ignores the well-established view of agencies as the primary policymakers for the statutes that they are empowered to administer. If the case against nonacquiescence rests on these grounds, it is a building lacking a viable foundation.

First Page

831

DOI

https://doi.org/10.2307/796639

Volume

99

Publication Date

1990

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