The Yale Law Journal

VOLUME
122
2012-2013
NUMBER
5
March 2013
1104-1371
Note

Curing the Blind Spot in Administrative Law: A Federal Common Law Framework for State Agencies Implementing Cooperative Federalism Statutes

Josh Bendor & Miles Farmer


122 Yale L.J. 1280 (2013).

This Note examines whether state or federal principles of administrative law should govern suits challenging state agency action pursuant to cooperative federalism statutes. Despite the prevalence of cooperative federalism statutes, courts and scholars alike have given scant attention to this question. That neglect has translated into poorly reasoned and inconsistent judicial decisions. We show that this question is one of federal common law that is properly governed by the framework of Kimbell Foods, which holds that federal common law should take state law as its substantive source unless doing so would create a significant conflict with federal policy.