Intracircuit Nonacquiescence and the Breakdown of the Rule of Law: A Response to Estreicher and Revesz
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Description
Over the past decade, administrative agency nonacquiescence – the refusal of an administrative agency to apply the law of the reviewing court – has been roundly condemned by the courts. In requiring agencies to comply with circuit precedent, the courts have drawn a sharp line between authority of the government to pursue litigation in circuits that have not yet ruled on an issue and its obligation to accept the settled law of circuits that have ruled against the government. * * * In their recent article, Nonacquiescence by Federal Administrative Agencies, Professors Samuel Estreicher and Richard Revesz argue that nonacquiescence within a circuit is clearly settled. They argue that nonacquisescence in a circuit’s case law is permissible so long at the agency is reasonably seeking to vindicate its position in the courts and is forwarding a position that is not “so bereft of support in available legal materials that it is unlikely to be accepted by any other court of appeals.” * * * * * * This Comment critiques Estreicher and Revesz’ underlying assumption about our legal system and their proposed standard for permissible nonacquiescence. We argue that their proposal upsets the balance between agencies and courts by rendering the judiciary essentially powerless to enforce congressional limitations on agency for long periods of time. * * *
Source Publication
Administrative Law Anthology
Source Editors/Authors
Thomas O. Sargentich
Publication Date
1994
Recommended Citation
Diller, Matthew and Morawetz, Nancy, "Intracircuit Nonacquiescence and the Breakdown of the Rule of Law: A Response to Estreicher and Revesz" (1994). Faculty Chapters. 1996.
https://gretchen.law.nyu.edu/fac-chapt/1996
