CAN ADMINISTRATIVE REGULATIONS INTERPRET RIGHTS ENFORCEABLE UNDER SECTION 1983?: WHY CHEVRON DEFERENCE SURVIVES SANDOVAL AND GONZAGA
Bradford C. Mank
There is a split in the circuits regarding whether and when agency regulations may establish rights enforceable through 42 U.S.C. § 1983.1 The District of Columbia Circuit and Sixth Circuit have held that at least some valid federal regulations may create rights enforceable through § 1983.2 Concluding that only Congress, by enacting a statute, may create an individually enforceable right, however, the Third, Fourth, and Eleventh Circuits have held that an agency regulation cannot create an individual federal right enforceable through § 1983, although some decisions in these circuits have recognized that valid regulations may help courts interpret, “define,” or “flesh out” the content of statutory rights. Most recently, in 2003, the Ninth Circuit in Save Our Valley v. Sound Transit held that valid agency regulations alone could not establish individual rights enforceable through § 1983 because only Congress may establish enforceable rights through statutes, although one judge disagreed in a partial dissent. By contrast, in the same year, the First Circuit in Rolland v. Romney acknowledged that regulations by themselves could not establish enforceable rights, but the court concluded that an agency’s regulations interpreting a statutory right could clarify the right so that it is sufficiently definite to be enforceable through a § 1983 suit.
EMPIRICALLY ASSESSING HADLEY V. BAXENDALE
George S. Geis
Hadley v. Baxendale, one of the most celebrated cases in contract law, sets forth the default rule that unforeseeable consequential damages are unrecoverable. The case has come to represent an important limit to the general rule awarding full expectation damages for breach. And over time, Hadley has taken on even greater significance as an archetype for contract default rules that efficiently expose asymmetric information.
BLACK CLUB WOMEN AND CHILD WELFARE: LESSONS FOR MODERN REFORM
Dorothy E. Roberts
Last year I discovered a chapter in the history of U.S. child welfare policy that is overlooked in most accounts of the child welfare system. An editor for Darlene Clark Hine’s Black Women in America: An Historical Encyclopedia asked me to write the entry about child welfare. As I began the project, I realized that I had written an entire book and several articles about mainstream child welfare agencies’ treatment of African-American children, but I knew too little about the history of African-American women’s own approach to child welfare issues.