Professor Timothy Armstrong’s Article Discussed in SCOTUS Order
Professor Timothy Armstrong’s article “Chevron Deference and Agency Self-Interest” (published in the Cornell Journal of Law & Public Policy) was cited on October 16, 2017 in the Scenic America, Inc. v. Dep’t of Transp. statement of Justice Neil Gorsuch, joined by Chief Justice John Roberts and Justice Samuel Alito, respecting the denial of certiorari.
Here’s Professor Armstrong’s take on the development:
Although I no longer specialize in the area, I handled quite a few matters dealing with administrative law during my career in private practice. My clients in such cases had disagreements with federal government agencies over the terms of the statutes those agencies administered. As administrative-law specialists know, federal agencies enjoy a significant advantage in litigation over other parties where disputes arise over the meaning of an agency’s governing statute. Agencies usually win such disputes because, under the reasoning of Chevron USA Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), courts are obliged to defer to an agency’s interpretation of its own statute in many instances, on the grounds that Congress meant for the agency itself to fill in the gaps and resolve any ambiguities in the legislation as enacted.
My article, “Chevron Deference and Agency Self-Interest,” argued that sometimes more important policies superseded the rationale of the Chevron decision. The article argued, specifically, that the courts should not defer to agencies’ legal interpretations when those interpretations tended to affect the scope of the agency’s regulatory authority or the agency’s financial interests, because in those scenarios, reasonable observers might doubt whether the agency’s action rested upon a dispassionate and impartial assessment of what the law actually required. The Court rejected my position, insofar as agencies’ regulatory authority is concerned, a few years ago in City of Arlington v. FCC, 133 S. Ct. 1863 (2013).
Monday’s Order, however, indicates that at least some of the Justices remain concerned about an agency’s reliance on the Chevron doctrine where the agency's legal interpretation redounds to its financial advantage. It is interesting that Justice Gorsuch drafted the order issued Monday, because his predecessor on the Court (the late Justice Antonin Scalia) wrote the majority opinion in City of Arlington and generally took a far more expansive view of the circumstances when Chevron deference was appropriate. For Justice Gorsuch to be signaling more discomfort with Chevron (as he also did during his years on the Court of Appeals) is a hint that the change in the composition of the Court in the few years since City of Arlington may become quite significant down the road if a new case raising the question of deference to agencies’ contractual interpretations should come before the Court.
Attorney, Scholar, Professor Michael Solimine’s 30+ Years in the Legal World
Before Professor Michael Solimine’s scholarship was cited by the Supreme Court of the United States, the Supreme Court of Ohio, and Iowa Supreme Court; before he became Cincinnati Law’s Donald P. Klekamp Professor of Law; and before he was awarded the University of Cincinnati’s 2017 Provost Faculty Career Award, he had developed an interest and passion for the law. Coming from a family of attorneys (both his dad and older brother were lawyers), Solimine felt a kinship with the legal world, deciding to major in political science when he attended Ohio’s Wright State University. He recalls his college years, remembering that “even back then I was interested in legal issues, and I was particularly interested in how political scientists . . . and other social scientists examine the legal system.”
Upon completing his undergraduate studies in 1978, Solimine was off to Northwestern University School of Law. While there, he made the dean’s list and served as Articles Editor for the Journal of Criminal Law and Criminology.
Honing his Interest in Civil Litigation
Although his knowledge and expertise cover many areas of law and legal studies, Professor Solimine is most recognized for his scholarship on civil litigation. His interest in this field grew when he took relevant classes in law school and later when he “clerked for a federal judge (Judge Walter H. Rice, United States District Court, Southern District of Ohio) and worked for him on both criminal and civil matters. Most of my work for him was on the civil side. After I finished my clerkship I practiced law for a firm [Porter, Wright, Morris, and Arthur] and did civil litigation.”
In 1986 Solimine transitioned to academia. Over the last three decades he has built a career defined by a devotion to teaching, research and serving the academic and professional communities. As a teacher, he is known as a professor who can translate “legalese into English” as he has transformed seemingly abstract concepts into comprehensible lessons.
With regard to research, Professor Solimine is a nationally and internationally recognized scholar in the American civil litigation systems, including civil procedure, federal courts, conflict of laws, as well as election law. His scholarly work consists of six books (a monograph on federal courts (Greenwood Press), a casebook on appellate practice (West Publishing), two casebooks on election law (Carolina Academic Press), two books for judges and lawyers on civil practice in Ohio courts (LexisNexis), and over 60 substantial articles, as well as numerous book reviews and shorter essays. His articles have been published in both peer-reviewed journals (e.g., Journal of Legal Studies, Supreme Court Economic Review) and in the law reviews of the top-ranked law schools in the United States (e.g., Michigan Law Review; Wisconsin Law Review; North Carolina Law Review; Ohio State Law Journal; Cornell International Law Journal; Harvard Journal of Law and Public Policy). He has been invited to participate in and has published in 20 symposia, delivered scholarly papers at annual meetings of the Association of American Law Schools, and the Midwest Political Science Association, and by invitation contributed essays to academic blogs.
Professor Solimine has received four separate recognition awards from the College of Law for his scholarship. And in spring 2017 he was honored with the university’s Faculty Career Award, presented to a member of the faculty who has worked to make UC a high-quality education and research-focused environment.
The character of his work is reflected in the numerous times his work has been cited and discussed in other books and articles-- over 2000 books and articles and counting. Also, his work has been cited in the decisions of numerous federal court decisions (including the U.S. Supreme Court), and by the state supreme courts of Ohio and Iowa.
Through all of his success Solimine has retained his passion for his studies in political science. He recently co-wrote an academic book, Understanding Election Law, with professors Michael Dimino, Commonwealth Law School, Widener University, and Bradley Smith, Capital University Law School. Solimine ‘s input for this book can be traced back to his college years. “I remember, all these years back in my undergraduate, that I took a really good class called ‘Political Parties.’ There was a segment in it that explored how the state and federal governments regulate parties, the campaign process, and fundraising. It was very interesting to me, and so when I came back into the academic world, I wrote on the subject. And to make a long story short, I ended up collaborating on a casebook.” Understanding Election Law was published by Carolina Academic Press in 2016.
Professor Solimine is always finding new subjects of interest. At present, he is working on an academic paper about the “three judge district court.” He explains that this a court that hears “a small number of cases, of a certain type, that are litigated at the trial level by three judges.” The three judges give a verdict, and if it is appealed, the case goes directly to the Supreme Court of the United States. Solimine’s work will illuminate the history and legal specifics of this little-known feature of the legal system.
Writer; Pete Mills
Prof. Mark Godsey Weighs in on Mueller’s Grand Jury
Professor Mark Godsey, director of the Ohio Innocence Project (and former federal prosecutor), discusses the meaning behind Special Counsel Robert Mueller’s opening of a grand jury in Washington, DC. Find out more here.
Professor and Dean of Academic Affairs Bradford Mank was quoted in the article, "High Court Won’t Hear Dispute Challenging FDA Over J&J Drug."
Professor and Dean of Academic Affairs Bradford Mank was quoted in the blog, "When Third Parties Can Sue Government Remains Murky."
Professor Janet Moore was acknowledged as being in the top 10% of Authors on SSRN by total new downloads within the last 12 months
Professors and OIP Attorneys Donald Caster and Brian Howe's article, "Taking a Mulligan: The Special Challenges of Narrative Creation in the Post-Conviction Context" was published in print in 76 Md. L. Rev. 770 (2017).
Michael Solimine Awarded 2017 Provost Faculty Career Award
Cincinnati, OH—In a career spanning three decades, Michael E. Solimine, JD, has built a firm career defined by a constant devotion to teaching, research and serving the academic and professional communities.
Over the course of his career he has developed a remarkable reputation as a researcher in the field of law, earning the distinction of being one of the most cited civil procedure professors in the United States for the last half decade. His work has seen publication across more than 70 law review articles, book chapters and book reviews.
His scholarship has been influential in the nation’s courts, with his works having been cited by Associate Justice Ruth Bader Ginsburg for a Supreme Court of the United States case. As a prominent figure in the College of Law, his colleagues and students have taken note of his constant professionalism, kindness and his role as a champion for the college’s core values of collegiality, due process and transparency.
Holding the title of Donald P. Klekamp Professor of Law, he has been known to his students as a professor who can translate “legalese into English” as he has transformed seemingly abstract concepts into comprehensible lessons.
He has served as a valuable mentor for the legal professionals under his tutelage, with his immense knowledge of all forms of federal courts and civil procedure making him an invaluable research source for his many students. In addition to his research and teaching service, he has shown a strong commitment to serving his community, helping newer faculty members as a key figure on the RPT committee and multiple decanal review boards and appearing as a consistent staple of the Faculty Senate.
Congratulations to Professor Michael Solimine!
Professors Mank and Lenhart Receive 2017 Award for Faculty Excellence
Cincinnati, OH—Professors Brad Mank and Elizabeth Lenhart received the university-level Award for Faculty Excellence. This award is given by the Office of the Provost and the Office of the Vice President for Research.
Professor Brad Mank, the Associate Dean for Academic Affairs and the James B. Helmer Professor of Law, is recognized for his service and scholarship contributions to the College of Law. During the last few years, he has published, or had accepted for publication, numerous articles and essays, including articles in the Notre Dame Law Review and the University of Pennsylvania Journal of Constitutional Law. While maintaining an active scholarly agenda, Professor Mank has chaired the Academic Policy and Curriculum (APC) Committee over several years of significant work, has served as the Associate Dean for Academic Affairs, and served as co-chair of the site visit committee. Each of these service activities has required significant additional responsibility.
Additionally, Professor Mank is a highly regarded teacher in the areas of administrative, natural resources, and environmental law. And he serves as an advisor to the Immigration and Nationality Law Review (INLR), an internationally recognized, student-run law journal.
Professor Elizabeth Lenhart is recognized for her service and teaching contributions to the College of Law. Professor Lenhart brings significant practical experience with oral arguments, motion practice, and other professional skills to the classes she teaches. Prior to joining the College of Law faculty, she was a senior associate at Frost Brown Todd, focusing on complex business litigation, including all aspects of antitrust, business torts, unfair competition, shareholder derivative suites, and class action litigation. She was named an Ohio Super Lawyer Rising Star 2009 for commercial litigation.
Professor Lenhart is a gifted teacher, having received the College of Law’s Goldman Prize for Excellence in Teaching three times (in 2011, 2014, and 2016). In addition to her consistent high level of service to the College of Law, Professor Lenhart undertook a significant service project this year. She research and then drafted a report titled “Legal Research at the University of Cincinnati, College of Law; An Informal Report Based on Conversations with Practitioners and Students about What We’re Doing Right – and What We Can Do Even Better.” Her report was based on discussions with law students and members of the Cincinnati Bar about the research skills necessary to be a successful lawyer. As technology and the legal research landscape continue to evolve, her report and continuing research into methodologies of legal research will contribute to the College of Law’s ongoing evaluation of its learning outcomes in the area of legal research.
About the Award for Faculty Excellence
The Award for Faculty Excellence is intended to annually recognize outstanding faculty members in each college who represent excellence in all its forms. These awards are for those individuals nominated by their dean in recognition for exceptional performance in their college or department during the past year. They may have done an outstanding job of service in an especially significant fashion; perhaps their research has received special recognition; or their teaching has been especially innovative or important in meeting new milestones or changing the department or college culture. It is important that the nominee embody the Principles of a Just Community in practice through civility, honor, inclusion, integrity, or the promotion of justice.
Professor Solimine Receives University’s Excellence Award for Research Mentoring
Professor Michael Solimine receives the university-level Excellence Award for Faculty-to-Faculty Research Mentoring, a new award given by the Office of the Provost and the Office of the Vice President for Research.
The Excellence Award for Faculty-to-Faculty Research Mentoring is intended to annually recognize outstanding faculty members in each college who have demonstrated research mentorship with faculty at various stages of their careers. Research mentorship may come in various forms, with the understanding that many times mentorship is discipline-specific, and these various forms of mentorship will be considered equally. The award decision will be made at the dean’s discretion based on criteria that include demonstrable mentoring activities that support the development and success of peer faculty in clinical, translational, or basic science research.
This award is meant to recognize faculty contributions to their respective colleges, to the UC research enterprise, and to recognize the mentoring and support of emerging research faculty.
Professor Solimine has taught at the College of Law since 1986, received tenure in 1991, and since 1994 has served as the Donald P. Klekamp Professor of Law. He has demonstrably achieved excellence in research, teaching and service throughout that period.
With regard to research, Professor Solimine is nationally and internationally recognized as one of the leading scholars in the American civil litigation systems, including civil procedure, federal courts, conflict of laws, as well as election law. His scholarly work consists of six books (a monograph on federal courts (Greenwood Press), a casebook on appellate practice (West Publishing), two casebooks on election law (Carolina Academic Press), and two books for judges and lawyers on civil practice in Ohio courts (LexisNexis), and over 60 substantial articles, as well as numerous book reviews and shorter essays. His articles have been published in both peer-reviewed journals (e.g., Journal of Legal Studies, Supreme Court Economic Review) and in the law reviews of the top-ranked law schools in the United States (e.g., Michigan Law Review; Wisconsin Law Review; North Carolina Law Review; Ohio State Law Journal; Cornell International Law Journal; Harvard Journal of Law and Public Policy). He has been invited to participate in and has published in 20 symposia, delivered scholarly papers at annual meetings of the Association of American Law Schools, and the Midwest Political Science Association, and by invitation contributed essays to academic blogs.
Professor Solimine has received four separate recognition awards from the College of Law for his scholarship. This spring he will receive the university’s Faculty Career Award. The distinguished character of his work is reflected in the numerous times his work has been cited and discussed in other books and articles. His work has been cited and discussed in over 2000 books and articles. Also, his work has been cited in the decisions of numerous federal court decisions (including the U.S. Supreme Court), and by the state supreme courts of Ohio and Iowa.
Professor Solimine has made frequent mentoring contributions. At the College of Law he has often served as chair of the RPT Committee, which plays an important role in mentoring faculty. Professor Solimine consistently reads and comments on works in progress of his colleagues, often providing critical input on articles and books. He also regularly assists colleagues at the College by providing them research and other materials relevant to their work.
Congratulations to Professor Solimine who truly demonstrates an ongoing commitment to research mentoring.