Chapman University Dale E. Fowler School of Law Associate Dean Donald Kochan’s work on “
Constituencies and Contemporaneousness in Reason-Giving: Thoughts and Direction After T-Mobile
” was published in October as the lead article in Volume 37 of the
Cardozo Law Review
From the abstract:
This Article presents a framework for reason-giving requirements in administrative law that includes a demand on agencies that reasons be produced contemporaneously with an agency’s decisions where multiple constituencies (including regulated entities), not just the courts (and judicial review), are served and respected as consumers of the reasons. The Article postulates that the January 2015 U.S. Supreme Court decision in T-Mobile South, LLC v. City of Roswell may prove to be groundbreaking and stir this framework to the forefront of administrative law decision-making. There are some fundamental, yet very understated, lessons in the T-Mobile opinion that prompt further attention and the fuller justification that this Article’s analysis provides.
The predominate focus in reason-giving by courts and scholars has been on when the agency must generate or develop reasons, not necessarily on when they must share them with the public. And courts and scholars have focused significantly on how reasons facilitate judicial review, but not necessarily so much on who else can demand the contemporaneous production of reasons associated with an agency’s decision. This Article’s framework seeks to broaden the focus. It calls for rules that mandate contemporaneous generation and contemporaneous revelation of reasons for immediate review by all interested constituencies at the time of decision.
The two primary conditions on reason-giving recognized in T-Mobile should receive broad implementation across the field of administrative law. Contemporaneous production of reasons with an eye toward cooperatively informing multiple constituencies who require, demand, or simply benefit from being able to access an agency’s reasons works to better serve the administration of our laws and improve the quality of the rules generated.
Donald J. Kochan
is the Associate Dean for Research & Faculty Development and Professor of Law at Chapman University Dale E. Fowler School of Law. Dean Kochan has published more than 35 scholarly articles and essays in well-respected law journals. His work has been cited in more than 300 published law review articles, and his articles have been downloaded more than 10,000 times from SSRN and BePress. Among his numerous activities, Dean Kochan currently is a Contributing Editor of the “Keeping Current-Property” section in
Probate & Property
, the bi-monthly magazine of the Real Property, Trust & Estate Law Section of the American Bar Association, serves as the Secretary for the Section on Property Law for the Association of American Law Schools, and serves as Vice Chair of the Committee on Environmental & Natural Resources Regulation of the ABA Section on Administrative Law & Regulatory Practice. Dean Kochan teaches Property I & II and Administrative Law, among other courses. Related recent works include “
The ‘Reason Giving’ Lawyer: An Ethical, Practical, and Pedagogical Perspective
” published in 2013 in the
Georgetown Journal of Legal Ethics
A Framework for Understanding Property Regulation and Land Use Control from a Dynamic Perspective
,” published in 2015 in the
Michigan Journal of Environmental & Administrative Law