Person: Rakoff, Todd
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Rakoff
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Rakoff, Todd
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Publication A Case for Another Case Method(Vanderbilt Law School, 2007) Rakoff, Todd; Minow, MarthaPublication A Case for Another Case Method(Vanderbilt Law School, 2007) Rakoff, Todd; Minow, MarthaPublication The Law and Sociology of Boilerplate(Michigan Law Review, 2006) Rakoff, ToddIn my view, the scholarship presented at this symposium demonstrates that, in order to analyze form contracts and boilerplate successfully, one must carry out a set of operations that embodies an approach I will call law and sociology. But I presume I was invited to be a commentator at this conference on boilerplate not because the article I wrote on one branch of the subject awhile back exemplified this methodological approach, but because it took a rather strong substantive position. And so I think I ought first to say a brief word about that. The article in question concerned contracts of adhesion in, roughly speaking, the consumer context, and the position I took was that what I called the “invisible” terms of those contracts—the large number of terms not disciplined by the actual bargaining or shopping behavior of consumers even in price-competitive markets—ought to be treated by the law as presumptively unenforceable. The burden should be put on drafting firms to show their form terms were worth judicial enforcement rather than on adherents to the forms to show the terms were unconscionable; and if this burden were not met, the courts should apply the general, legally implied default terms instead of the drafter’s terms. This was not then, and is not now, the law, but I would not be candid if I did not say that I still think that, as regards the domain I was addressing, I was right.Publication In Defense of Big Waiver(Columbia Law Review Association, Inc., 2013) Barron, David J.; Rakoff, ToddCongressional delegation of broad lawmaking power to administrative agencies has defined the modern regulatory state. But a new form of this foundational practice is being implemented with increasing frequency: the delegation to agencies of the power to waive requirements that Congress itself has passed. It appears, among other places, as a central feature of two signature statutes of the last decade, the No Child Left Behind Act and the Patient Protection and Affordable Care Act. We call this delegation of the power to unmake major statutory provisions “big waiver.” This Article examines the basic structure and theory of big waiver, its operation in various regulatory contexts, and its constitutional and policy implications. While delegation by Congress of the power to unmake the law it makes raises concerns, we conclude the emergence of big waiver represents a salutary development. By allowing Congress to take ownership of a detailed statutory regime—even one it knows may be waived—big waiver allows Congress to codify policy preferences it might otherwise be unwilling to enact. Furthermore, by enabling Congress to stipulate a baseline against which agencies’ subsequent actions are measured, big waiver offers a sorely needed means by which Congress and the executive branch may overcome gridlock. And finally, in a world laden with federal statutes, big waiver provides Congress a valuable tool for freeing the exercise of new delegations of authority from prior constraints and updating legislative frameworks that have grown stale. We welcome this new phase of the administrative process.