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The administrative constitution in exile.


For decades, the aspiration of administrative law has been to develop legal structures that would constrain and legitimate the exercise of agency power. The fruition of that hope was the complex internal blueprint that has made modern administrative governance both successful and legitimate--the framework for executive action that many have hailed as the "administrative constitution." Today, however, novel exercises of administrative power are crowding out old and familiar varieties, making the conventional forms of administrative action less and less relevant to the conduct of government.

This Article examines how the administrative constitution has changed over time and how that transformation can be better understood by reference to constitutional theory. Administrative law today confronts a conceptual choice similar to that faced by constitutional law in the wake of the New Deal: whether to treat fundamental constitutional change as exile or as evolution. When faced with that choice, living constitutionalists did not simply declare by fiat that the Constitution was "living." Instead, they justified that assessment by explaining how democratically legitimate constitutional change occurs as a result of an entire system of constitutional construction working in concert--a system that includes courts, political parties, citizens, and social movements.

The problem for administrative law is that it lacks such an account of legitimate administrative constitutional evolution. The legal, political, and social mechanisms that ensure that the living Constitution is simultaneously robust, adaptable, and democratically legitimate apply much more weakly to the dynamics responsible for administrative constitutional change. Administrative law thus faces a daunting challenge: to ensure that administrative constitutional change itself occurs in a constrained and legitimate fashion. If that challenge is not met, we run the risk that we will be governed not by a robust and administrative constitution, but by an administrative constitution "in exile."
Table of Contents

I.   The Idea of the Administrative Constitution
     A. Agency Procedure
     B. Internal Checks and Balances
     C. Judicial Review
     D. Transparency
II.  The Rule of the Exceptions
     A. Waivers and Delays
        1. Notice and an Opportunity to Comment
        2. Contemporaneous Reason-Giving
        3. Judicial Review
    B. Counterparties and Conservators
III. Exile and Evolution
IV.  The Living Constitution and the
     Administrative Constitution

Mila Sohoni, Associate Professor, University of San Diego School of Law. For helpful thoughts and conversations, many thanks to Kate Andrias, Jordan Barry, Laurie Claus, Chris Egleson, Dick Fallon, Dov Fox, Adam Hirsch, Rebecca Ingber, Lee Kovarsky, Ron Levin, Daryl Levinson, Gillian Metzger, Dave Owen, Michael Ramsey, Daphna Renan, Kate Shaw, Aaron Simowitz, Alexander Tsesis, Lou Virelli, Alan Weinstein, and Adam Zimmerman. I am also grateful to the participants in and organizers of the Fall 2014 Southern California Junior Faculty Workshop at Loyola Law School and the AALS New Voices in Administrative Law event in January 2015.


For the last century, the aspiration of administrative law has been to develop legal structures that would structure and channel the exercise of agency power. (1) This challenge was answered by the crafting of what many have called an "administrative constitution." (2) These ground rules for administrative law include "structural and substantive measures," (3) such as the Administrative Procedure Act (APA) and open-government laws, as well as the key precedents and conventions that shape agency action, such as Chevron and the presumption that agency action will be reviewable. (4) This core body of law is frequently credited with performing the functions of constitutional law, (5) but with an extra kick that the Madisonian blueprint lacks--the bonuses of efficiency, deliberativeness, and transparency. To many, modern administrative governance owes both its success and its legitimacy to this complex and enduring legal structure. (6)

Recently, however, others have discerned deepening cracks in this edifice. In these accounts, the administrative constitution's central commitments are becoming irrelevant to the ongoing functioning of the administrative state. Administrative law has become a "lost world," Daniel Farber and Anne Joseph O'Connell recently wrote in one such account, as the administrative state's "actual workings ... have increasingly diverged from the assumptions animating the APA and classic judicial decisions." (7)

We have come to a strange pass. As emphatically as some have insisted upon the utility, centrality, and durability of the administrative constitution, others now argue that the basic constraints of that administrative constitution have become attenuated. The administrative constitution is widely hailed as a meaningful checkpoint that rationalizes and legitimates consequential administrative action--and is also dismissed as an outmoded set of rules that no longer has real purchase on a significant set of such actions. The term "administrative constitution" is becoming something akin to one of those oddities of English, the contronym; it has come to carry, like the words "moot" or "sanction," two simultaneous and contradictory connotations--that it is both essential and dispensable.

So, which is it? Just what sort of constitution is this "administrative constitution," and what exactly is happening to it right now? Are the march of time and the pressure of politics rendering it, and the values it aspires to shield, obsolete? Or, alternatively, is it essentially intact and simply adapting, as certain constitutions seem to do when circumstances demand? (8)

On one threshold point--whether a significant type of change is afoot--there is little room for disagreement. As with privatization (9) and new governance, (10) we are witnessing the proliferation of new and "unorthodox" forms of administrative government; but unlike privatization or new governance, (11) these new forms of administrative government are emerging within the four walls of the existing administrative state. For their legality, these new measures rely upon facets of administrative law--the exercise of enforcement discretion, regulation free of judicial review, exceptions to rulemaking requirements, and so forth--that have long existed as a formal matter, but that traditionally have had a modest footprint. Today, regulatory measures predicated on these formerly exceptional facets of administrative law affect the rights and obligations of millions of individuals and public and private entities in myriad regulatory contexts. (12)

In thinking about what to make of this shift, consider an analogy to constitutional law. Before the New Deal, the Commerce Clause and the spending power existed. But before the New Deal era, the combined significance of these provisions was much narrower than their collective significance after the New Deal era. The consequence of this change was a dramatic shift in power toward the federal government and away from the states, and toward the state and federal governments from private parties. (13)

Today, administrative law stands at a similar fork. The provisions of administrative law that authorize regulation free from procedural constraint or judicial review have attained a degree of significance in the conduct of government very different from the significance they formerly had. These aspects of administrative law--like the post-New Deal Commerce Clause and spending power--have a far larger footprint than they used to have. The consequence, again, has been to shift how effective power is allocated among the branches of government and the public--in this case, by moving power toward the federal executive and away from Congress, the judiciary, and private parties. In short, what is occurring in administrative law today looks similar to what occurred in constitutional law in the New Deal period.

The analogy is not a perfect one, of course, and it is one that should not be overstated. Still, the comparison helpfully illuminates the curious ambivalence we now observe about the status of the administrative constitution. When some scholars looked back at the New Deal era, they famously (or infamously) concluded that the original meaning of the Constitution went into "exile" (14) or was "lost" (15) in that era. Today, something analogous is happening within administrative law scholarship. As anomalous exercises of administrative power have proliferated in scope and grown in significance, the original administrative constitution seems to be vanishing into a kind of exile of its own. The diagnosis of loss or exile is one response to a dawning recognition that a set of "conventions" with constitutional flavor is gradually coming unraveled. (16)

Of course, as constitutional law scholarship reflects, exile is not the only possible diagnosis for such a shift. Like constitutional law in the wake of the New Deal, administrative law today confronts a simple conceptual choice: whether to treat fundamental constitutional change as exile or as evolution. When faced with that choice, the constitutional theorists who rejected the notion of exile did not do so by simple fiat. Rather, they justified their assessment of the Constitution as a "living" document by offering nuanced descriptions of how legitimate constitutional change occurs. (17) Such change, according to one typical account, depends on an "entire system of constitutional construction" working in concert--a system that includes "political branches, courts, political parties, social movements, interest groups, and individual citizens." (18) If the Constitution is a living tree, then this is the surrounding ecosystem that keeps that tree rooted in democratic soil even as it continues to grow and change. (19)

The problem is that this kind of account, attractive though it may be for ordinary constitutional change, does not easily translate to the context of administrative law. The networks and mechanisms that ensure that constitutional law is simultaneously robust, adaptable, and democratically legitimate apply much more weakly to administrative law. (20) Whereas courts, political parties, civil society, and social movements have been careful superintendents of ordinary constitutional change, they play significantly diminished roles in monitoring administrative constitutional change. (21)

We are thus left with a challenge. If we are to continue to take seriously the concept of the administrative constitution, we must also think seriously about how that constitution can permissibly evolve over time. (22) To put it another way, just as constitutional law has long aspired to do, administrative law must seek to ensure that its constitutional evolution is legitimate. (23) This will be no small task.

But until it is accomplished, we risk the prospect of being governed not by a robust and living administrative constitution, but instead by an administrative constitution in exile.

A final point must be stressed at the outset. Throughout, this Article applies the argot of constitutional law to elements of administrative law that are obviously statutory, regulatory, or common law in character. In one sense, not much turns on this choice of locution; swap in "fundamental administrative law values" for "the administrative constitution," and the account below remains essentially intact. But one should not rush to make that swap. Administrative law has much to learn from constitutional theory on the topic of understanding and addressing fundamental legal transformation. For that payoff alone, the metaphor of the administrative constitution is well worth treating seriously. (24)

This Article proceeds in four parts. Part I introduces the idea of the administrative constitution in some important areas of federal law. Part II describes the marginalization of the administrative constitution. Part III sets out the conceptual choice between a constitution in exile and a living administrative constitution. Part IV assesses the extent to which living constitutionalist accounts translate to the administrative law context. A brief conclusion follows.

I. The Idea of the Administrative Constitution

No court has ever used the term "administrative constitution." (25) The term seems to have made its debut in legal scholarship in an article by Richard Stewart, to whom the term denoted "a charter of basic principles for regulatory and administrative law." (26) At almost the same time, Donald Elliott described the "constitution of the administrative state" as providing "structure and control over the enormous array of federal ... agencies ... and authorities that now exercise power to make law in various forms." (27) Writing more narrowly about the APA, Steven Croley assessed the "simile" that treats that statute as "the constitution of the regulatory state." (28) Jerry Mashaw, who used the term in the title of his comprehensive historical account of the early years of the administrative state, likewise used the phrase to refer to the law that "structures political control, administrative process, and judicial review." (29) Gillian Metzger explored the concept in her illuminating account of administrative constitutionalism, a related but distinct idea. (30) Most recently, Emily Bremer provided a thorough explication and a ringing defense of the "unwritten administrative constitution." (31)

Even if the term as such is employed relatively infrequently, the idea itself has long been floating around. Everyone has heard the APA described as "constitutional" or "quasi-constitutional." (32) Other measures that bind and constrain agencies, such as the Freedom of Information Act (FOIA), are likewise often labeled "constitutional" in character. (33) By the same token, when proposals are floated for amending the core elements of the administrative constitution, discussions of those proposals frequently deploy constitutional language. (34) For example, almost twenty years ago, as Newt Gingrich gaveled in a Republican-majority House, Steven Croley remarked on the widespread perception among legal commentators that the proposals for regulatory reform pending before that Congress were "tantamount to an attack on the regulatory constitution itself, a constitutional crisis of sorts." (35) Plus ga change, plus c'est la meme chose: in (2015), as a newly installed Republican majority in the (114) th Congress introduced repackaged versions of many of Gingrich's regulatory reform ideas, prominent opponents of those proposals from the legal academy once again framed their criticisms in administrative constitutional terms, noting that "[t]he APA has served for nearly (70) years as a kind of Constitution for administrative agencies and the affected public." (36)

It hardly needs saying that these scholars, and the scores of others who have used this terminology, are not the collective victims of some kind of mass category error about the kind of law that qualifies as fundamental or constitutional in the American legal system. Clearly, the "administrative constitution" is neither codified in a single place nor formally entrenched against change in the way that the "large C" Constitution is, (37) and it is safe to assume that nobody who uses that term thinks that it is. Rather, what the widespread and persistent use of this locution reflects is simply the realist recognition that the core components of administrative law play the functional role of a constitution for the regulatory state notwithstanding their lack of formal codification or entrenchment. As Emily Bremer puts it, the rules of the administrative constitution "create and map important government institutions, regulate the boundaries among those institutions, establish the relationship between agencies and citizens, and protect and promote commonly held core values." (38) The norms of the administrative constitution are simply a subset of the many "small-c" or "extracanonical" constitutional norms that persist outside the parchment boundaries of the canonical Constitution. (39)

The components of the administrative constitution emerged gradually over a considerable period of time. Jerry Mashaw describes the twentieth century as a period in which "[administrative process went from being the artifact of particular statutes and practices within individual agencies to one based importantly on transsubstantive legislation and judicial interpretations." (40) The process of standardization described by Mashaw eventually coalesced around a standard legal picture of administrative law. (41) In this picture, administrative law is organized around certain transsubstantive elements: constraints on agency process to ensure reasoned and fair decision making, internal checks and balances, judicial oversight, and transparency. (42)

These are the elements of the administrative constitution as that term is used here. (43) Each of these elements plays a dual role: it constrains administrative action in various ways, and, as a result, it legitimates that action. (44) The link between constraint and legitimacy is vital. (45) For many commentators--scholarly and popular--the answer to the question, "Is the administrative state basically good or basically bad?" seems to move in lockstep with the answer to the question, "Is the administrative state properly constrained?" In a two-by-two grid of responses to these two yes-or-no questions, really only two cells have any significant headcount: the one where the administrative state is "good and constrained," and one where it is "bad and unconstrained." Those who think that the administrative state is basically a bad idea tend not to admit that it is meaningfully constrained. (46) Perhaps the most notable candidates for inclusion in the fourth cell--the "good but unconstrained" box--are Richard Stewart and Adrian Vermeule. Stewart maintained his sang froid notwithstanding reaching the conclusion, in his justly famous article, that agency discretion in the use of delegated power is restricted neither by traditional "procedural mechanisms" nor by the then-emerging "interest representation model." (47) More recently, Vermeule endorsed the ongoing "tradeoff" that "justifies] abuses of power as the unavoidable byproduct of a package solution that is increasingly desirable overall." (48)

The point is that defenses of the administrative state generally correlate with the view that controls on the administrative state are robust; attacks upon the administrative state generally correlate with the view that those controls are absent or weak. The administrative constitution is the collection of the most important constraints on the administrative state. The perception of administrative government's legitimacy will therefore vary as a function of these constraints. With that in mind, let us review the various elements of the administrative constitution.

A. Agency Procedure

At the center of the administrative constitution sits the APA, a statute that for decades has been hailed as "constitutional" or "quasi-constitutional" in stature. (49) Today, the APA is "[t]he framework for understanding most national lawmaking." (50)

The APA was the fruit of a historic political compromise, (51) and its text has survived largely intact since (1946). (52) The APA was enacted in response to concerns of American lawyers and politicians that the newly powerful administrative state was in risk of "lurching toward tyranny." (53) This perception flowed from a widely shared sense that "[a]gency proceedings were opaque, processes diverged markedly from standard judicial adversary procedures, and agencies' combinations of legislative, executive, and judicial functions struck many as aggrandizing executive power and creating the potential for bias and prejudgment in administrative determinations." (54) The "standard account" of the APA is that it should be conceptualized as "an attempt to translate liberal legalism into a world of large-scale delegation to the executive, substituting procedural controls and judicial review for legislative specification of policies." (55)

The APA requires that agency decision making not be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." (56) It requires agencies to base their decisions on the statutory factors specified by Congress (57) and to eschew consideration of any factors not specified by Congress. (58) The APA also places numerous restrictions on the processes by which agencies create binding legal rules and decide cases. (59) The agency "must have evidence before it acts and must provide (or at least be prepared to provide) an explanation for its actions that links the decision to the statutory standards." (60) Whether the agency is acting by rulemaking or by adjudication, the APA shields the right of private parties to submit evidence to the agency for its consideration, and courts have construed the statute to require the agency to consider the full corpus of the evidence submitted when deciding how to act. (61)

As Alan Morrison explains, "the APA has been, by and large, a guardian of justice and a protector of the people's right to review the actions of their government and its relations with other societal institutions." (62) Such sentiments are not uncommon. (63) The APA grounds the claim that agency action carries at least as much legitimacy as congressional action. (64) The APA's safeguards and restrictions on agency action are widely accepted as playing a critical role in guiding and legitimating administrative decision making. (65)

B. Internal Checks and Balances

A second central component of the administrative constitution is the internal separation of powers rules that structure the exercise of authority within agencies. Although "[t]he meaning of 'internal separation of powers' is not immediately self-evident," the concept "is most often equated with measures that check or constrain the Executive Branch, particularly presidential power," in which those measures operate within the confines of the executive branch. (66)

Perhaps most prominent among these mechanisms are agency rules that place Chinese walls between the performance of the rulemaking and adjudicative functions of an agency and the performance of its investigation and enforcement functions. (67) This "separation of functions" principle protects the due process value of unbiased decision making in the context of adjudication. (68)

The professional civil service supplies another internal check. As Jon Michaels has emphasized, "[c]ivil servants are politically insulated" and are thus "well positioned to push back on any tendency agency leaders might have to skirt laws and promote hyperpartisan interests." (69) They thus play a crucial role in ensuring that "apolitical expertise" helps to drive agency decision making. (70)

Like the other components of the administrative constitution, the rules protecting internal checks and balances serve not only a practical purpose but also play a legitimating function. Michaels notes that "the separating and checking of administrative powers is about more than simply preventing abuse. Administrative separation of powers has an affirmative component as well: the legitimization of administrative power." (71) By preventing the concentration of state power in a single unchecked source, administrative separation of powers protects pluralism in administrative governance and thereby enhances support for the administrative state. "Administrative separation of powers," in this account, represents nothing less than "an act of constitutional restoration, anchoring administrative governance firmly within the constitutional tradition of employing rivalrous institutional counterweights to promote good governance, political accountability, and compliance with the rule of law." (72)

C. Judicial Review

A third central component of the administrative constitution is the doctrine that shapes the availability and form of judicial review. As Jody Freeman observes, "[t]he purpose of judicial review is to guarantee the legality of agency decision making by monitoring fidelity to legal procedure and compliance with substantive norms of rationality." (73) The key role played by courts is to constrain agency action by ensuring that agencies engage in reasoned decision making that is faithful to their statutory mandates. (74) Courts require agencies to have reasons for their decisions, and courts also determine which kinds of reasons "count" and which do not. (75) Reasons that are "[t]raditionally" regarded as valid "have taken the form of empirical evidence, policy arguments, agency expertise, or logical arguments based on statutory language or the purpose of the broader statutory scheme administered by the agency." (76)

A related but distinct role played by judicial review is to enforce reason -giving by agencies. (77) In Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile Insurance Co., the Supreme Court interpreted SEC u. Chenery Corp. to lay down the principle that a court conducting judicial review "may not supply a reasoned basis for the agency's action that the agency itself has not given." (78) By forcing agencies to shoulder the burden of supplying a reasoned decision, Chenery "[made] agencies into reason-giving institutions." (79)

Judicial review of agency action counters nondelegation concerns. (80) Although the breadth of power delegated to executive and independent agencies may appear "questionable" as a formal constitutional matter, these broad delegations "have been allowed largely on the assumption that courts would be available to ensure agency fidelity to whatever statutory directives have been issued." (81) The checking function of judicial review both constrains and legitimates agency action. (82)

D. Transparency

Due to concerns about "bureaucratic unaccountability" shared by "[c]itizens and lawmakers alike," Congress in the 1960s and 1970s enacted laws that would open government "to the light of public scrutiny." (83) Among these were the original and the amended FOIA. (84) Like the APA, these statutes were enacted to ensure the existence of agency decision-making structures that are responsive to the reasoned public interest. (85)

FOIA has been widely hailed "as a part of modern 'small c' constitutional practice." (86) "The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." (87) Because open government laws perform this vital checking role, these laws also have a legitimating function. (88) Transparency of agency action is a key chip "in the bargained-for exchange of agency power for agency accountability that underpins the legitimacy of the modern administrative state." (89)

The elements just described define the administrative constitution, and they bespeak the values it is meant to promote: transparency, fairness to regulated entities, reasonable and deliberate government action, and democratic legitimacy. (90) It is important to note one final feature of this constitution: it is not watertight. The "APA's procedural provisions are littered with loopholes," including "categorical exceptions and definitional quirks" that exempt many sorts of agency action from otherwise applicable procedural rules. (91) Open government laws likewise exempt many kinds of documents and government information from disclosure. (92) Judicial review is not a uniform check; the law of standing (and in particular the law of enforcement discretion) and the occasional statutory preclusion of judicial review exempt various kinds of agency action from checking by courts. (93) These features of administrative law--what I will loosely call its "loopholes" or its "exceptions"--enable agencies to take action that is procedurally unfettered and unchecked by courts. The next Part will elaborate on the increasing importance of this sort of agency action.


As Daniel Farber and Anne Joseph O'Connell have observed, administrative law generally
   conceives of the administrative process as operating as follows:
   (1) The implementation of statutory directives (2) by statutorily
   designated administrators ... (3) based on reasoned consideration
   of the statutory standard (4) as applied to formally designated
   evidence (5) using procedures imposed by Congress or determined by
   the agency, which (6) can then be reviewed by the courts. (94)

But "[t]he reality," they point out, "diverges considerably" from this picture. (95) In fact, "the contemporary operation of the administrative state frequently involves overlapping, unreviewable agency decisions made by unconfirmed acting agency heads or unconfirmed presidential aides, based on procedures and criteria enunciated in presidential executive orders rather than statutes." (96) Other scholars have similarly observed an uptick in novel and unorthodox administrative forms and structures. (97)

This Part illustrates these observations by describing some consequential regulatory actions that shunt aside the conventional rules of the administrative constitution. The examples discussed here share two simple but important features. First, they are a big deal. These regulatory measures affect the rights and obligations of millions of individuals and public and private entities in myriad regulatory contexts. (98) Second, these regulatory measures are procedurally unfettered. By this, I mean that in undertaking these regulatory measures, the relevant agencies did not issue a contemporaneous justification for why the measure was necessary; they did not issue a proposed policy for comment in advance of its adoption; and they did not respond publicly to input from affected parties before finalizing the action. Moreover, these regulatory measures have not so far been, and may never be, subject to judicial review on the merits (with one important exception). (99)

Of course, that a measure is procedurally unfettered (or not reviewable by a court) does not mean it is illegal. (100) As noted above, administrative law itself contemplates and authorizes various kinds of procedurally unfettered agency action. (101) For purposes of the discussion here, let us stipulate that these measures are both constitutional and statutorily authorized, and furthermore that they are correctly predicated on one or more of the "loopholes" or "exceptions" to the administrative constitution. (102) Let us stipulate that they are, in short, legal. What I seek to demonstrate here is that, notwithstanding their legality, these measures do not align with the values that the administrative constitution is designed to promote.

A. Waivers and Delays

During the early months of the George W. Bush Administration, the energy industry had a powerful ally in Washington, D.C.: Vice President Dick Cheney. (103) In 2001, President Bush established the National Energy Policy Development Group, an energy task force, and appointed Cheney as chair. (104) After three months of meetings, Cheney's task force issued a report recommending reduced regulatory burdens on power, oil, and gas companies. (105) To carry out that recommendation, the EPA issued a rule known as the "twenty percent rule," which dramatically increased the scope of the statutory "routine maintenance" exception to new source review. (106) The rule was short-lived; three years after the rule was issued, the D.C. Circuit held that it violated the Clean Air Act, which unambiguously required new source review of "'any physical change' that increase[d] emissions." (107)

What happened next illustrates the power of silent enforcement policy: "New enforcement activity for NSR [new source review] violations all but disappeared.... [T]he twenty percent rule lived on throughout the Bush Administration as an informal enforcement policy, with the practical effect of halting NSR enforcement altogether." (108)

This vignette illustrates how agencies can achieve indirectly, via nonenforcement, what they cannot do directly. (109) Many agencies have relied on policies of nonenforcement to achieve aims that arguably were not authorized by statute. (110) On other occasions, the executive has publicly announced a policy of waiver that exempts individuals or entities from otherwise applicable legal or regulatory schemes. (111) Although nonenforcement and waiver policies are distinguishable--notably because nonenforcement generates less reliance (112)--they are points on a (rather short) spectrum; in either case, the executive branch is shaping the implementation of a statutory scheme through the exercise of enforcement discretion.

The waiver power has a long history of usage, one that cuts across party lines and administrations. (113) What has changed in recent years is the prominence of the executive branch's use of this administrative method. Through the use of waiver, the executive branch has facilitated "'nearly wholesale administrative revision' of major regulatory initiatives in fields ranging from the budget to education to welfare policy." (114) In health care, (115) immigration, (116) and education, (117) the executive branch has issued waivers to statutory provisions or delayed the implementation of statutory provisions beyond specified deadlines. These recent waivers and delays do not affect merely the regulatory burdens that must be borne by a subset of companies in a single regulated industry; rather, they affect individuals and entities on a massive scale. (118)
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Title Annotation:Abstract into II. The Rule of the Exceptions A. Waivers and Delays, p. 923-948
Author:Sohoni, Mila
Publication:William and Mary Law Review
Date:Feb 1, 2016
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