Penn Statim: The Online Companion to the Penn State Law Review

By Steve Cohen*
Published September 28, 2014

I. Introduction

Hospitals can be very dangerous places. Between 44,000 and 98,000 patients are killed every year in hospitals—and many more are injured—due to medical error. A landmark study, “To Err is Human,” conducted by the Institute of Medicine (“IOM”) uncovered these findings in 1999.[1]

Josef Stalin is reputed to have said,

By: Agron Etemi*
Published Feb. 20, 2014


As we approach the thirtieth anniversary of the landmark decision of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,[1] we are reminded of its continued vitality in modern administrative law, as well as the polarizing effect it has on judges, commentators, and practitioners alike.  While most applaud the Chevron decision for introducing simplicity to the deference rules, others have called for terminating the doctrine altogether.[2]  Not startling, then, is the Supreme Court’s recent decision in City of Arlington v. FCC,[3] which presented a fractured decision concerning the applicability of the Chevron framework.

In City of Arlington, the Court confronted the issue of whether to defer to the Federal Communication Commission’s (“FCC”) interpretation of a statutory ambiguity concerning the “scope of [the FCC’s] regulatory authority (that is, its jurisdiction)[.]”[4]  On the briefs, much of the fight appeared to focus on the distinction between an agency interpretation of jurisdictional and nonjurisdictional statutory provisions.  Justice Scalia, for the majority, concluded that the distinction was meaningless because “every new application of a broad statutory term can be reframed as a questionable extension of the agency’s jurisdiction.”[5]  Moreover, he opined that the general conferral of rulemaking and adjudicative authority to the FCC warranted the conclusion that Congress delegated interpretive authority to the FCC to resolve the particular ambiguity in question.  Having concluded so, the Court held that deference was due to the FCC’s interpretation under Chevron Step Two because the FCC’s interpretation was not unreasonable (or, to put it differently, it was not outside the bounds of its statutory authority).[6]

Chief Justice Roberts saw it differently.  Although Chief Justice Roberts agreed that the jurisdictional-nonjurisdictional distinction was a red herring, he disagreed with the majority’s assumption that the delegation of general rulemaking authority over a statute provided the FCC with authority to interpret any statutory ambiguity.[7]  Rather, citing his concerns over the vast growth of the administrative state, Chief Justice Roberts opined that the Court has a duty to first determine whether Congress intended the agency to have interpretive authority over the particular provision before affording it the ultimate weapon —Chevron deference.[8]

This Essay has three primary tasks.  The first, which is the subject of Part II, is to synthesize cogently the law regarding judicial deference to agency interpretations of statutory ambiguities.  The second task, which is the subject of Part III, is to provide an analysis of each of the opinions in the City of Arlington decision.  Finally, in Part IV, I conclude that Chief Justice Roberts’ dissenting opinion offers a more realistic approach than that offered by the majority that is also consistent with the Court’s precedent, and more faithful to the separation of powers doctrine.

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By: Brian Christopher Jones, Ph.D.*
Published Oct. 30, 2013


A frequent and cumbersome complaint about lawmakers is that they do not read legislation as it travels through the legislative process.[1]  In the United States, complaints about the lack of textual reading of legislation reached a fever pitch during debate over the Patient Protection and Affordable Care Act[2] (“Obamacare”), as legislators were often portrayed as having a lack of specialized, or even general, knowledge on the lengthy measure.[3]  Many respected news outlets waded into the issue: Washington Post (“Read Before You Vote, Congressman”);[4] U.S. News and World Report (“Health Reform Demands That Lawmakers Read the Bills”)[5]; and even Wired (“Read the Bill, Group Tells Congress”).[6]  The Wired story featured the Sunlight Foundation, which started a campaign called “Read the Bill,” complete with its own website listing rushed bills and other case studies regarding lengthy legislation.[7]  Yet, the view that not reading legislation is problematic seems to be based on the mistaken belief that lawmakers are interested in and engaged with every bill that passes in front of their desk or is voted on in the chamber.  To be frank, this assertion is silly.

Legislatures, and particularly the U.S. Congress, are composed of diverse individuals that have particular backgrounds and specializations, and legislative interest varies.[8]  Some lawmakers may be interested in agriculture, some in immigration, and others in foreign affairs.  One does not become a universal legal and policy expert simply because he or she is elected to public office.  Barring legislative specialization, however, members of Congress employ specialized staff whose job it is to read and write legislation,[9] and report to their bosses on particular points of interest and other matters (not to mention the lobbyists, think tanks, and NGOs that produce their own summaries and analyses on particular bills).

By: Ryan H. Nelson*
Published Oct. 16, 2013


Imagine your spouse is seriously ill.  If you want to take a leave of absence from work to care for your spouse pursuant to the Family and Medical Leave Act of 1993 (“FMLA”),[1] and your employer exercises its right to verify that you qualify for FMLA leave,[2] the proof you would need to provide depends on your sexual orientation.  Unlike employees in opposite-sex marriages, employees in same-sex marriages are entitled to FMLA leave only if they currently reside in a state that recognizes their marriage.  Herein, I examine this dichotomous requirement for gay employees from the perspective of management; conclude that the FMLA not only permits, but encourages, employers to demand more of gay employees; and resolve that the U.S. Department of Labor must amend the regulations implementing the FMLA to eliminate employers’ perverse incentive to hold employees to a different standard on account of who they love.

This dichotomy reared its head for the first time in the wake of United States v. Windsor.[3]  In Windsor, Ms. Edith “Edie” Windsor and Ms. Thea Spyer legally wed in Canada and resided in New York.[4]  New York recognized their marriage when Spyer died.[5]  Yet, pursuant to Section 3 of the Defense of Marriage Act of 1996 (“DOMA”), the federal government did not recognize the couple’s marriage.[6]  As a result, Windsor was required to pay estate taxes on her inheritance of Spyer’s estate.[7]  These estate taxes would not have been levied against Windsor had Spyer been a man.[8]  Windsor sued the United States, claiming Section 3 of DOMA was unconstitutional.[9]  The U.S. Supreme Court agreed with her, holding that Section 3 of DOMA violated the Equal Protection component of the Fifth Amendment.[10]

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