Category: Administrative Law

Delaying Aid to the Sick and Suffering

Erik Eckholm’s well-reported story on growing delays in Social Security disability cases is yet another sad documentation of our country’s flagging concern for the impoverished sick and suffering:

Steadily lengthening delays in the resolution of Social Security disability claims have left hundreds of thousands of people in a kind of purgatory, now waiting as long as three years for a decision. Two-thirds of those who appeal an initial rejection eventually win their cases. But in the meantime, more and more people have lost their homes, declared bankruptcy or even died while awaiting an appeals hearing. . . .

Timely justice in these cases would require more staff to deal with appeals. Instead, continuing budget battles mean that SSA “will probably operate on the basis of continuing resolutions, which will keep agency spending at last year’s level and doom the plan to add judges.”

The parsimonious and inaccurate bureaucracy excels at a few things, though. It generates lots of work for those who represent the claimants. And it displays a Kafkaesque willingness to help once it’s too late:

In the past, said Walter Patterson, a disability lawyer in Charlotte, N.C., clients who received a foreclosure warning were pushed up the waiting list for quicker hearings. But as the hearing offices have become overwhelmed, he said, they now expedite cases only after seeing an actual eviction notice — usually too late to help.

Like the costly ER interventions that could be avoided if only we provided preventive medical care for the poor, the dilatory aid offered by a torpid SSA should provoke a rethink of bureaucratic justice here. Though the agency is under stress, it should no longer hide behind Mathews v. Eldridge to justify a deeply flawed and unfair system.


Law Talk: Linda Malone on Litigating Global Warming

In this episode we hear from my colleague Linda Malone, at William & Mary Law School. Linda is an expert on international law, national security law, and the legal issues surrounding global warming. In this episode Linda discusses new litigation strategies that are using domestic courts as a way of enforcing international norms on global warming, as well as forcing action by domestic regulators. Her remarks were originally delivered as the St. George Tucker Lecture at William & Mary, which is given each year to honor the scholarlly accomplishments of a senior member of the law faculty.

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Why did the US try to Undermine EU Safety Regulation?

As a website relates, “Mark Schapiro’s new book Exposed: The Toxic Chemistry of Everyday Products investigates how corporations intent on thwarting stricter environmental and health guidelines here in the U.S. are forced to meet new demands by the European Union.” An excerpt from the book compares the U.S.’s oft-toothless Toxic Substances Control Act to the EU’s scheme for Registration, Evaluation and Authorisation of Chemicals (REACH). Schapiro notes that “REACH amounts to a revolution in how chemicals are managed, and in how production decisions around the world will be made from now on.”

As REACH was being crafted, the U.S. decided to intervene decisively:

[A]s REACH was being debated in the European Parliament from 2003 to 2006, the U.S. government and the nation’s industries teamed up to undertake an unprecedented international lobbying effort to kill or

radically weaken the proposal. The assault came from an assortment of government and industry offices.

A memo that circulated at the State Department’s Bureau of European and Eurasian Affairs denounced REACH as too “costly, burdensome, and complex” for industry to follow. . . [A] Commerce Department brief warned, “hundreds of thousands of Americans could be thrown out of their jobs.” U.S. Trade Representative Robert Zoellick submitted a protest to the World Trade Organization asserting that REACH amounted to a “non-tariff” barrier to foreign exporters.

Though REACH promises to become a world standard, the U.S. may soon see itself in the position that Larry Summers recommended for LDC’s: “our nation’s steady retreat from environmental leadership means it may soon become a dumping ground for chemicals deemed too hazardous by more progressive countries.” Schapiro suggests that the bottom line will be an relative increase in European power and quality of life: “American consumers are more at risk than their European counterparts[;] the European Union is . . . gaining the upper hand in regulating the behavior of multinational corporations; and [the EU] is thus amassing more economic power.”

Administering Family Values

Following some excellent reporting on the failures of the CPSC, the NYT gives a big picture forecast of rapid rulemaking in the remainder of the Bush administration:

Hoping to lock in policies backed by a pro-business administration . . . [b]usinesses are lobbying the Bush administration to roll back rules that let employees take time off for family needs and medical problems.


The National Association of Manufacturers [NAM] said the law had been widely abused and had caused “a staggering loss of work hours” as employees took unscheduled, intermittent time off for health conditions that could not be verified. The use of such leave time tends to rise sharply before holiday weekends, on the day after Super Bowl Sunday and on the first day of the local hunting season, employers said.

The NAM should watch out–they might provoke a hunter-FMLA alliance as durable as the hunter-environmentalist one. They could also generate more lawsuits in the future by putting complex limits on FMLA leave.

But I’m sure NAM has its eye on not just legal but cultural change. Perhaps the endgame is to force more and more workers to be like this one, quoted in Jill Andresky Fraser’s White Collar Sweatshop (p. 23):

[A worker from Intel said] “If you make the choice to have a home life, you will be ranked and rated at the bottom. I was willing to work the endless hours, come in on weekends, travel to the ends of the earth. I had no hobbies, no outside interests. If I wasn’t involved in the company, I wasn’t anything.”

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Excesses of Eurocracy?

Are the Eurocrats going too far? Here’s part of a story on some excesses overseas:

[M]any European cities and regions, at Brussels’ behest, are now developing so-called noise maps. To produce the maps, precise noise readings must be taken on every street, whether in downtown areas, in industrial zones, along railway lines or in expensive and leafy residential neighborhoods.

“We are drowning in a sea of data,” complains Munich Mayor Christian Ude. And in the end, no matter how costly the measuring process is, the results reveal what everyone has known all along: that it’s louder on busy, high-traffic streets than in exclusive, villa-filled residential neighborhoods with maximum speed limits of 30 kilometers per hour.

On the other hand, the more you read about the toxic chemistry of everyday products in the U.S., the more you become willing to accept a burgeoning Brussels.

The Regulatory Beat

Back in 2002 the Columbia Journalism Review published a piece on “Invisible Agencies,” which focused on the rarity of prominent reporting on administrative law decisionmaking. It was a superb piece of meta-journalism, explaining in detail the blinders of the MSM:

Reporting on the regulatory beat, of course, is hard. It requires a reporter to know science, law, administrative procedure, and politics. Journalists must understand the industry in question and the subtleties of regulation – what’s proposed, what the regulated industries prefer, and how the public will be affected. Learning all this takes time. Where once reporters like George Anthan, who covered food safety regulations for the Des Moines Register, could spend weeks plowing through stacks of inspection records at the Department of Agriculture, reporters now tend to want and need something quick and dirty.

Maybe that explains why some of the best reporting on the regulatory beat is done by trade-press reporters, whose job it is to accurately report the nuances of regulation for the regulated industries that have profits riding on the agency decisions. For example, Allison Beers, who recently left her post as managing editor of Food Chemical News, became an expert on the workings of the Department of Agriculture when she was covering food safety regulation, and her stories stand out.

Fortunately, a couple of recent stories break the trend of administrative obscurity. I’ll post on them in a bit.

Unexplained Departure from Which Precedent?

KnightsOfLabor.jpgAnyone teaching administrative law has to grapple with famous cases involving the National Labor Relations Board. The Board has a long history of sharp political shifts that frustrate appellate courts and litigants alike. The NLRB does virtually all its work via adjudication, which provides it ample room to contradict itself if it can “explain departures from precedent.” Today’s Harold Meyerson editorial National Labor Ruination Board provides a limit case of Board inconsistency:

On Sept. 29 — a date that will live in the Double Standard Hall of Fame — the NLRB issued two rulings, the first (Dana Corp./Metaldyne) dealing with “card check.” This is the process by which an employer can recognize a union when a majority of employees sign cards or petitions affiliating themselves with that union, bypassing the board election process, which an anti-union employer can drag out for years. The board ruled that once a union was certified through card check, the employer must post a notice telling employees that if 30 percent of them sign a petition saying they don’t want a union, the 50 percent-plus-one of them that do are overruled and a board election must be held. The Bush appointees argued that card-check isn’t a good measure of worker sentiment, since those employees who sign cards and petitions may be susceptible to “group pressure.”

On the same day, however, in a case (Wurtland Nursing) involving an employer’s withdrawal of recognition from the union in its workplace, the board ruled that if a majority of workers signed cards or petitions asking for a vote to remove the union, the employer could decertify the union then and there without even holding that vote. Signed petitions from workers, in other words, are suspect when the workers want a union and proof positive when they don’t.

The contradiction raises fascinating legal questions. Which decision came down first? And must the latter case explain its contradiction of the principles inherent in the former? What if the Board adopts a general presumption that workers can be intimidated into forming unions but cannot be intimidated not to join a union? Can an agency evade a responsibility to reconcile two cases by releasing them simultaneously–i.e., neither is precedent for the other? Perhaps something like the Uniform Simultaneous Death Act needs to be adopted for wily agencies that release contradictory opinions simultaneously.

There should be some appellate scrutiny of these decisions, even if the Board intransigently adopts a policy of nonacquiescence in response.

Image: Seal of Knights of Labor.


Predatory Lending: Meet Jonathan Swift

plalogo.gifAt the new website of the Predatory Lending Association, aspiring lenders can find concentrations of “working poor” customers in their neighborhood, calculate effectively usurious loans, not blacklist crusaders against payday lending, including Liz Warren, and learn all the arguments that goo-goos will make against high-interest borrowing. One Q&A in particular should be familiar to contracts professors (or maybe just those, like me, who use Randy Barnett’s Perspectives book):

Myth: Payday lending is comparable to selling yourself into slavery.

Reality: Although there is a market need for slavery, people do not choose to sell themselves into slavery. Free choice is the difference between payday lending and slavery.

(There is even a neat chart to make the connection more clear.) On the discussion boards, you can share your thoughts with other predatory lenders. Sure, it all seems a little too cute, but it’s worth checking out anyway.

Captured CPSC, Road Show Edition

nord.jpgThe last time I blogged about Nancy Nord, head of the Consumer Product Safety Commission, I thought it would be the last. Certainly anyone caught in the middle of escalating product recalls and public outcry over toy safety would be responsive to efforts to improve the CPSC’s budget and staffing. Consider the following report:

Government statistics show that imports have increased by 338 percent since 1974, the year the Consumer Product Safety Commission was created. Yet the budget for that agency today is less than half what is was in that year. In effect, we have been disarming our ability to protect ourselves, even as the need to do so has been soaring.

chinaimports.jpgBut I was wrong. Nord has instead told Congress not to give the CPSC more funding and enforcement authority. The Washington Post now suggests some reasons why: she and “her predecessor have taken dozens of trips at the expense of the toy, appliance and children’s furniture industries and others they regulate.” Hilton Head, Barcelona, Orlando–ahh, the difficult life of the regulator:

In February, for example, Nord accepted more than $2,000 in travel and accommodations from the Defense Research Institute to attend its meeting in New Orleans on “product litigation trends,” according to her report. The institute is made up of more than 20,000 corporate defense lawyers. In 2004, [her predecessor] Stratton attended the group’s meeting in Barcelona, at a cost to the group of $915 for his hotel room.

The guiding “philosophy” behind the current CPSC appears to be a belief in self-regulation: companies themselves should take primary responsibility for safety. My question is whether, after a case like MVMA v. State Farm, an agency can use a political commitment to libertarianism to trump its extant legal and scientific obligations to protect the public. For example, what if the CPSC just decided that any penalty of, say, more than $100 for death-causing injuries would ultimately be counterproductive because it would discourage reporting? Should courts defer to such “agency expertise”? I’d always hoped such questions would remain mere bizarre hypotheticals, but we appear to be in a world where their relevance increases by the day.

Toobin’s The Nine: Lost Illusions

toobinnine.jpgI thoroughly enjoyed my speed-read of Jeffrey Toobin’s The Nine. Few books wrap so many deliciously gossipy details about the justices’ life and work around one fundamental insight, which I’ll relate upfront:

[Chief Justice Roberts has said] “Judges are like umpires. Umpires don’t make the rules; they apply them.” [But] Supreme Court justices are nothing at all like baseball umpires. . . . When it comes to the core of the court’s work, determining the contemporary meaning of the constitution, it is ideology, not craft or skill, that controls the outcome of the cases. As Richard A. Posner. . . has written, “It is rarely possible to say with a straight face of a Supreme Court decision that it was decided correctly or incorrectly. . . . [They] can be decided only on the basis of a political judgment. . . . “. [W]hen it comes to the incendiary political issues that end up in the Supreme Court, what matters is not the quality of the arguments but the identity of the justices.

Toobin shows how the justices’ stands are deeply rooted in their biographies, ideologies, and personalities. For example, Thomas loathes Yale (he placed a “Yale Sucks” bumper sticker “on the mantel of his chambers for some time”) and loves Red State NASCAR culture. Breyer’s cosmopolitan views reflect bien pensant Cambridge (Mass.) and Oxford (England). It would take a minor miracle to get these two men to see affirmative action, campaign finance regulation, or abortion in the same way. And frankly, their divergent worldviews will often lead to irreconcilable conflicts on statutory interpretation as well.

Toobin’s book accelerates the classic dynamics of celebrity: it feeds public interest in the justices’ quirks and peccadilloes, then leaves us wondering: why are these people so powerful, anyway? As Britney wilted under constant media scrutiny, so too do the justices appear all-too-human under the glare of Toobin’s meticulous reporting. Toobin claims that the last five justices appointed have “turned out precisely as might have been expected by” their presidential sponsors. He gives the impression that they mechanically advance the interests of the political machines that elevated them.

So where does this leave lawyers? Perhaps a bit more comfortable with the administrative state, which can be more frankly (and accountably) political. Some agencies may also find their legal “freedom of maneuver” more constrained by science and expertise than the Supreme Court would. As Cass Sunstein has stated, “the law’s meaning is not a ‘brooding omnipresence in the sky’–and . . . the executive, with its comparative expertise and accountability, is in the best position to make the judgments of policy and principle on which resolution of statutory ambiguities often depends.” Until a book like The Five (about, say, the Federal Communications Commission) shatters our faith in their capacity to escape capture and promote the public good.