Category: Administrative Law

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Efficacy and Administrative Law, Part II

In an earlier post, I raised the question of whether we might do well to focus greater attention on the role of constitutional and administrative law in promoting the efficacy of regulation, rather than simply its limitation and constraint.

Off-line, Bill Buzbee, my Emory colleague and a scholar of administrative and environmental law, questioned whether I was understating the attention to efficacy in the administrative law literature, prompting me to try out a bit of (extremely) casual empiricism. For the very limited insight it offers, my results:

My search for (“administrative law” /5 limit!) in Westlaw’s Journals and Law Reviews (JLR) database, to begin, yielded 437 hits.

My search for (“administrative law” /5 (efficac! effective!)) in JLR, by contrast, yielded 129.

Look out, Hoffman, I’m a number cruncher now!

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Constraint vs. Efficacy in the Study of State Action

In their broadest strokes, my scholarly interests revolve around questions of regulatory design – inquiries into the institutional forms that law and regulation variously take, and should take. Dynamics of coordination have been particularly salient for me, underpinning a potential role for non-coercive mechanisms of state action I term “regulatory cues,” as well as cross-jurisdictional regulatory interactions I term “intersystemic governance.”

In exploring these patterns, my work has often intersected with issues traditionally studied in the fields of constitutional and administrative law. Questions of U.S. federalism, the nature of federal jurisdiction, and judicial review have variously reared their heads; the nature of the modern administrative state, meanwhile, is front and center.

My various analyses of regulatory cues, intersystemic governance, and the like have also seemed to diverge from the constitutional and administrative law literatures, however, in a way that has always struck me as significant, but was only recently driven home, in relevant comments and work of others.

My earliest sense of the relevant divergence came some years back, when I was working on my very first article, and read the opening paragraphs of Jody Freeman‘s The Private Role in Public Governance, 75 N.Y.U. L. Rev. 543, 545-46 (2000). She states (with citations omitted):

Administrative law, a field motivated by the need to legitimize the exercise of governmental authority, must now reckon with private power, or risk irrelevance as a discipline. Since the New Deal explosion of government agencies, administrative law has been defined by the crisis of legitimacy and the problem of agency discretion. Agencies can claim, after all, only a dubious constitutional lineage–the Framers made no explicit provision for them, but instead divided power among the legislative and judicial branches and a unitary executive. The combination of executive, legislative, and adjudicative functions in administrative agencies appears to violate the separation of powers principles embodied in the Constitution. Worse yet, despite their considerable discretionary power to impact individual liberty and property rights, allocate benefits and burdens, and shape virtually every sector of the economy, agencies are not directly accountable to the electorate.

Unsurprisingly, administrative law scholarship has organized itself largely around the need to defend the administrative state against accusations of illegitimacy, principally by emphasizing mechanisms that render agencies indirectly accountable to the electorate, such as legislative and executive oversight and judicial review. Scholars have expended considerable energy in particular on structuring and disciplining the exercise of discretion in order to limit agencies’ freedom “to do as they please.” Only a handful of articles in the last sixty years, by contrast, have ventured beyond the traditional preoccupation with agencies and the project of constraint.

Freeman goes on to grapple with the question of the private role in public governance, the insight for which she is perhaps most famous. Beyond this discrete (if quite significant) point, though, I read the latter paragraphs to suggest an even deeper truth. As we have defined the discipline of administrative law (and constitutional law, I would venture to add), its underlying project – its basic motivation – is the constraint of government power (and perhaps executive power, most of all). It is, as Freeman’s opening paragraphs emphasize, an analysis in the negative, of how we limit the scope of state action.

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The New Hall Monitors

The front page of today’s Washington Post reports on a recent explosion in the number of corporate “monitorships,” noting a sevenfold increase since 2001. In these cases, the article reports, federal prosecutors direct contracts to private parties, who are given responsibility to oversee sometimes radical reconstructions of companies charged with fraud or other wrongdoing. The often hefty bill, of course, goes to the relevant company.

Much of the analysis in the article speaks to potential corruption/favoritism in the appointment of individuals to fill these lucrative positions. The article notes the appointment of “various former prosecutors and SEC officials with ties to President Bush, his father and other Republican luminaries,” before focusing on a particular case out of New Jersey. (Which choice I saw, as a perhaps overly defensive temporary resident, to play on pernicious stereotypes of this fair state…)

I was more interested, however, to think about the nature of the institution of “monitors” more generally. What, I wondered, were potential analogies in our schemes of law and governance? Court-appointed special masters immediately came to mind. Naturally, there’s some whiff of our sorely missed independent counsels. Perhaps given my international interests, I somehow thought of the U.N. trusteeship system as well, which in turn brought to mind the various uses of private trustees in the U.S. bankruptcy system.

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“Don’t Regulate Me or I’ll Capture You!”

That’s the headline of Brett Frischmann’s insightful post at Madisonian. Frischmann notes that all-too-frequently in public debate, “the ‘risk of capture’ argument leads people to conclude that government should simply not act or regulate, and should instead ignore whatever problem or market failure that would otherwise justify intervention.” That’s one reason why I’ve said that the “price” of a capture argument should be the concession that much more public financing of elections is necessary. That may raise Lindblom’s “circularity” problem at present, but dynamically it appears to be the only way to avoid capture in the long run.

Frischmann also congratulates Larry Lessig on his advocacy for reform of the political process, and I’m glad he’s addressing the larger political forces behind the fine-grained legal issues most law profs study. He may well get us closer to a more fair and open political process. But in the meantime, here’s an interesting story on the nature of political change possible in the current political environment:

Phillip Morris . . . threw an enormous multimillion-dollar party for Republicans last month because they wanted the Family Smoking Bill passed, which would force tobacco companies to lower nicotine levels. Phillip Morris, in opposition of the other tobacco companies, actually wants this legislation because they dominate the low-nicotine cigarette market.

Unfortunately, the big tobacco interest in trade policy is not quite as benign.

Why the FEC Deadlock?

The WaPo warns that the FEC is about to “shut down.” Though “375 auditors, lawyers and investigators at the FEC will continue to process work already before them, a variety of matters that fall to the commissioners will be placed on hold indefinitely” because of gridlock over President Bush’s effort to appoint Hans Von Spakofsky to a six year term on the commission. Here’s Dahlia Lithwick on Von Spakofsky:

Von Spakovsky’s Senate confirmation hearing last June was noteworthy for many oddities, not the least of which was a letter sent to the rules committee by six former career professionals in the voting rights section of the Justice Department; folks who had worked under both Republican and Democratic administrations for a period that spanned 36 years. The letter urged the committee to reject von Spakovsky on the grounds that while at DoJ, he was one of the architects of a transformation in the voting rights section from its “historic mission to enforce the nation’s civil rights laws without regard to politics, to pursuing an agenda which placed the highest priority on the partisan political goals of the political appointees who supervised the Section.” The authors named him as the “point person for undermining the Civil Rights Division’s mandate to protect voting rights.”

The Lithwick article is worth reading in full, as is the context provided by election law scholar Richard Hasen in Slate stories here and here.

My question is: isn’t there some less controversial nominee than Von Spakofsky? Washington must have a good number of Republican election lawyers who share the president’s priorities and would prove excellent leaders of the Commission.

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Verkuil and Klein on Privatization

Philip Dynia at the Law & Politics Book Review has commented on Paul Verkuil’s Outsourcing Sovereignty: Why Privatization of Government Functions Threatens Democracy and What We Can Do about It. Dynia characterizes the book as a sober and penetrating analysis of two disturbing trends:

Who is really in charge of government policy making? Verkuil sets himself the task of demonstrating two points: (1) that important work both significant to and often inherent in the concept of government is being contracted out to the detriment of democratic policy making, and (2) that the trend can (and though he does not say so directly must) be moderated, if not reversed, by changes in the way government operates.

Dynia calls Verkuil’s “command of the relevant literature . . . prodigious,” and notes his skill at “incorporat[ing] constitutional, statutory, administrative, and contractual sources.” Here are some of the conclusions that Dynia draws from Verkuil’s book:

[T]he ratio of political appointees to the number of senior career managers must change. Verkuil cites a report by the National Commission on the Public Service (the Volcker Commission) which notes that President Kennedy had 286 political leadership positions to fill, President Clinton 914, and President George W. Bush 3,361. Such a large number of political appointees paralyzes government . . . . Moreover, studies have shown that politically appointed bureau chiefs get systematically lower management grades than bureau chiefs drawn from the civil service . . . . In short, FEMA’s Michael Brown . . . is just the pathetically obvious tip of [an iceberg of] cronies.

I look forward to comparing Verkuil’s book to Naomi Klein’s The Shock Doctrine, a polemical take on privatization.

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Deborah Platt Majoras on Political Friendster

adamsrib.jpgBoth EPIC and CDD have petitioned for a recusal of FTC Chair Deborah Platt Majoras in the pending Google/Doubleclick merger review. According to Louise Story at the NYT Bits Blog, “Ms. Majoras’s husband, John M. Majoras, works at Jones Day, a law firm representing DoubleClick as the merger is considered. Ms. Majoras also worked at Jones Day.” The motion lays out the recusal standards in some detail, and notes specific instances where Platt Majoras recused herself before:

Chairman Majoras recused herself in the FTC’s review of the Proctor & Gamble acquisition of Gillette “because her former law firm, Jones Day, represented P&G before the Commission, and Majoras’ husband remains an active partner with the firm.”

Whenever I teach the Cheney/Scalia duck hunt case, I am reminded of how much networks of influence in DC can overlap. The Matalin/Carville romance reminds us that compartmentalization is an option. One might imagine the Majorases as actors in a regulatory “Adam’s Rib,” where two married lawyers “use every technique they know to win the case, [as] the courtroom tension carries over into the couple’s household.”

But this page on Political Friendster suggests the tensions may not run too high. It points out some industry connections made a bit more clear at this source.

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.

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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.

You can subscribe to “Law Talk” using iTunes or Feedburner. You can also visit the “Law Talk” page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

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.”