I hope to blog more about the faculty scholarship awards from the ABA Administrative Law Conference last week — to Adrian Vermeule for his book Law’s Abnegation and to Eloise Pasachoff for her Yale Law Journal article The President’s Budget as a Source of Agency Policy Control. But here is the Vanderbilt Law School’s press release on the student paper winner, Laura Dolbow. Dolbow’s presentation of her paper at the conference was also very impressive.
Here’s the release:
Laura Dolbow ’17 has won the Gellhorn-Sargentich Law Student Essay Competition, an annual writing competition sponsored by the American Bar Association Section of Administrative Law. The award, which includes a $5,000 cash prize, recognizes students who write in any topic in administrative law.
“This award is viewed as the highest prize recognition in the nation for law student papers on administrative law,” said Kevin Stack, an administrative law scholar who holds Vanderbilt’s Lee S. and Charles A. Speir Chair in Law, noting that no other law school has had more than one winner, and Vanderbilt has had three winners in the last five years.
Dolbow is currently serving as a law clerk for Judge Timothy B. Dyk of the U.S. Court of Appeals for the Federal Circuit. She wrote her paper, “Appropriating Agencies: How Congress Leverages Legislative History to Direct Agency Action,” for the Legal Scholarship seminar taught by Owen Jones, who holds Vanderbilt’s New York Alumni Chancellor’s Chair in Law. “Much of the paper was inspired by classroom discussions and conversions with Professor Stack while I was taking his Administrative Law class,” she said.
Dolbow’s paper also won the law school’s Weldon B. White Prize, which each year recognizes the graduate “who submitted the best paper in fulfillment of the law school’s advanced writing requirement.” She was the recipient of the Ethel and Cecil Roberts Scholarship.
“Laura’s paper makes a significant and original contribution to our understanding of ways in which Congress communicates directions to administrative agencies, and it’s an excellent example of trying to answer a big question—the character of control Congress has over agencies—with careful scholarship,” Stack said. “She pioneers a whole new area of empirical analysis, which hopefully will be followed up by other studies.”
In her paper, Dolbow addresses two questions: whether federal agencies use legislative history as a guide in interpreting statutes, and if so, whether that should raise concerns about separation of powers. “Language in legislative history is not binding, yet every year committee reports that accompany appropriations bills contain hundreds of detailed provisions targeted at all administrative agencies,” she writes. “The prevalence of these non-statutory instructions brings up questions: If agencies are not required to follow committee instructions, do they do so anyway? Should they?”
Dolbow’s work builds on an empirical study by Christopher Walker of Ohio State’s Mortitz College of Law, which found that federal agencies do consider legislative history as an important source when interpreting statues. Her paper uses House and Senate Appropriations Committee instructions intended to influence the actions of the Food and Drug Administration as a case study by looking at how the FDA responded to those instructions. “For fiscal year 2017, the House and Senate committee reports contained 104 provisions targeted at the FDA alone,” she writes. That enabled her to study the FDA’s response to these provisions to address the question of whether “agencies actually implement specific instructions from legislative history.”
Her findings suggested that agencies do pay close attention to instructions embedded in committee reports, but that agency personnel pushed back against some instructions. “The FDA followed most appropriations committee report instructions to issue new guidance documents, but it also maintained flexibility in its response and sometimes used its expertise as a tool to resist committee instructions,” she said. “That protects against separation of powers concerns.”
How agencies respond to the informal guidance provided in Appropriations Committee reports is particularly important, Dolbow states, at a time when agencies are increasingly regulating through informal guidance documents, which provide fewer formal opportunities for public participation than more formal agency actions, such as notice-and-comment rulemaking. “My study provides insight into how congressional committees direct agency action outside of the full legislative process, where there are fewer formal opportunities for public participation,” she said. “Congressional oversight can be a powerful tool to increase public participation in agency policy making, and it also promotes political accountability. But the dialogue between committees and agencies must be transparent.”