• Login
    View Item 
    •   Home
    • Yale
    • Yale Journal on Regulation
    • View Item
    •   Home
    • Yale
    • Yale Journal on Regulation
    • View Item
    JavaScript is disabled for your browser. Some features of this site may not work without it.

    Browse

    All of openYLSCommunitiesPublication DateAuthorsTitlesSubjectsThis CollectionPublication DateAuthorsTitlesSubjects

    My Account

    LoginRegister

    Statistics

    Display statistics

    FOIA’s Common Law

    • CSV
    • RefMan
    • EndNote
    • BibTex
    • RefWorks
    Thumbnail
    Name:
    36_JREG_575_Brinkerhoff_3.pdf
    Size:
    686.4Kb
    Format:
    PDF
    Download
    Author
    Brinkerhoff Jr, John C.
    
    Metadata
    Show full item record
    URI
    http://hdl.handle.net/20.500.13051/8290
    Abstract
    The Freedom of Information Act (FOIA) replaced the near-total control that agencies held over their records with a judicially enforceable “right” of public access to agency information. Underscoring the importance of this statutory right, FOIA rejected the judiciary’s traditional respect for agency expertise. It instead places the burden of proof on the government and mandates de novo review in litigation. And yet, agencies still effectively control the terms of information disclosure. The government wins nine out of every ten FOIA cases in court. This ratio is a startling departure from other areas of administrative law, where agencies generally enjoy much lower win rates. This Article provides a framework for understanding this tension. Tracing FOIA’s doctrines to their roots, it finds that FOIA jurisprudence reflects the well-established “administrative common law” approach that courts apply elsewhere in administrative law. Specifically, courts have used functional or policy-based reasoning to transport preexisting evidentiary and administrative law doctrines to FOIA litigation, often in ways that challenge statutory text. Because these pre-FOIA doctrines overwhelmingly empowered the executive, the ensuing doctrines that courts grafted onto FOIA (“FOIA’s common law”) predictably and consistently favor agencies. Recognizing FOIA doctrine as a subset of administrative common law holds broader implications. It provides a meaningful baseline for critique by situating FOIA within a larger debate over the judiciary’s proper role in the administrative state. It also offers new perspectives on how Congress can counteract the inertial forces driving FOIA’s common law. Finally, it informs the larger debate over administrative common law by showing the method’s resilience in an area where Congress has been uniquely active.
    Collections
    Yale Journal on Regulation

    entitlement

     
    DSpace software (copyright © 2002 - 2023)  DuraSpace
    Quick Guide | Contact Us
    Open Repository is a service operated by 
    Atmire NV
     

    Export search results

    The export option will allow you to export the current search results of the entered query to a file. Different formats are available for download. To export the items, click on the button corresponding with the preferred download format.

    By default, clicking on the export buttons will result in a download of the allowed maximum amount of items.

    To select a subset of the search results, click "Selective Export" button and make a selection of the items you want to export. The amount of items that can be exported at once is similarly restricted as the full export.

    After making a selection, click one of the export format buttons. The amount of items that will be exported is indicated in the bubble next to export format.