Digital Commons Network^™

Quitting In Protest: A Theory Of Presidential Policy Making And Agency Response, Charles M. Cameron, John M. De Figueiredo, David E. Lewis

Faculty Scholarship

This paper examines the effects of centralized presidential policy-making, implemented through unilateral executive action, on the willingness of bureaucrats to exert effort and stay in the government. Extending models in organizational economics, we show that policy initiative by the president is a substitute for initiative by civil servants. Yet, total effort is enhanced when both work. Presidential centralization of policy often impels policy-oriented bureaucrats ("zealots") to quit rather than implement presidential policies they dislike. Those most likely to quit are a range of moderate bureaucrats. More extreme bureaucrats may be willing to wait out an opposition president in the hope …

The Diffusion Of Regulatory Oversight, Jonathan B. Wiener

Faculty Scholarship

The idea of cost-benefit analysis has been spreading internationally for centuries — at least since an American named Benjamin Franklin wrote a letter in 1772 to his British friend, Joseph Priestley, recommending that Priestley weigh the pros and cons of a difficult decision in what Franklin dubbed a “moral or prudential algebra” (Franklin 1772) (more on this letter below). Several recent studies show that the use of benefit-cost analysis (BCA), for both public projects and public regulation of private activities, is now unfolding in countries on every habitable continent around the world (Livermore and Revesz 2013; Quah and Toh 2012; …

Comparing Regulatory Oversight Bodies Across The Atlantic: The Office Of Information And Regulatory Affairs In The Us And The Impact Assessment Board In The Eu, Jonathan B. Wiener, Alberto Alemanno

Faculty Scholarship

‘Quis custodiet ipsos custodes?’ asked the Roman poet Juvenal – ‘who will watch the watchers, who will guard the guardians?’ As legislative and regulatory processes around the globe progressively put greater emphasis on impact assessment and accountability, we ask: who oversees the regulators? Although regulation can often be necessary and beneficial, it can also impose its own costs. As a result, many governments have embraced, or are considering embracing, regulatory oversight--frequently relying on economic analysis as a tool of evaluation. We are especially interested in the emergence over the last four decades of a new set of institutional actors, the …

The Solicitor General As Mediator Between Court And Agency, Margaret H. Lemos

Faculty Scholarship

No abstract provided.

The Other Delegate: Judicially Administered Statutes And The Nondelegation Doctrine, Margaret H. Lemos

Faculty Scholarship

The nondelegation doctrine is the subject of a vast and everexpanding body of scholarship. But nondelegation literature, like nondelegation law, focuses almost exclusively on delegations of power to administrative agencies. It ignores Congress's other delegate-the federal judiciary.

This Article brings courts into the delegation picture. It demonstrates that, just as agencies exercise a lawmaking function when they fill in the gaps left by broad statutory delegations of power, so too do courts. The nondelegation doctrine purports to limit the amount of lawmaking authority Congress can cede to another institution without violating the separation of powers. Although typically considered only with …

Policy Analysis For Natural Hazards: Some Cautionary Lessons From Environmental Policy Analysis, Matthew D. Adler

Faculty Scholarship

No abstract provided.

Justification, Legitimacy, And Administrative Governance, Matthew D. Adler

Faculty Scholarship

Richard Stewart, in his classic article ‘The Reformation of American Administrative Law,’ argues that the demise of the ’transmission belt’ model of administrative governance creates a crisis of agency legitimacy, and he skeptically surveys a range of possible solutions to the legitimacy crisis. I claim that Stewart’s skepticism is misguided. It may be true that no feasible administrative structure is democratically legitimate; but it is also true, given the logic of moral justification, that in every choice situation confronted by agency decisionmakers, or by those who design agencies, there is some morally permissible and justified choice (perhaps a choice that …

Introduction, To Cost-Benefit Analysis, Matthew D. Adler, Eric A. Posner

Faculty Scholarship

No abstract provided.

Implementing Cost-Benefit Analysis When Preferences Are Distorted, Matthew D. Adler, Eric A. Posner

Faculty Scholarship

Cost-benefit analysis is routinely used by government agencies in order to evaluate projects, but it remains controversial among academics. This paper argues that cost-benefit analysis is best understood as a welfarist decision procedure and that use of cost-benefit analysis is more likely to maximize overall well-being than is use of alternative decision-procedures. The paper focuses on the problem of distorted preference. A person's preferences are distorted when his or her satisfaction does not enhance that person's well-being. Preferences typically thought to be distorted in this sense include disinterested preferences, uninformed preferences, adaptive preferences, and objectively bad preferences; further, preferences may …

Law And Incommensurability: Introduction, Matthew D. Adler

Faculty Scholarship

No abstract provided.

Judicial Restraint In The Administrative State: Beyond The Countermajoritarian Difficulty, Matthew D. Adler

Faculty Scholarship

Arguments for judicial restraint point to some kind of judicial deficit (such as a democratic or an epistemic deficit) as grounds for limiting judicial review. ("Judicial review" is used in this Article to mean, essentially, the judicial invalidation of statutes, rules, orders and actions in virtue of the Bill of Rights, or similar unwritten criteria.). The most influential argument for judicial restraint has been the Countermajoritarian Difficulty. This is a legislature-centered argument: one that points to features of *legislatures*, as grounds for courts to refrain from invalidating *statutes*. This Article seeks to recast scholarly debate about judicial restraint, and to …

Structure And Process, Politics And Policy: Administrative Arrangements And The Political Control Of Agencies, Mathew D. Mccubbins, Roger D. Noll, Barry R. Weingast

Faculty Scholarship

No abstract provided.