Law Commons^™

Private Wealth And Public Goods: A Case For A National Investment Authority, Robert C. Hockett, Saule T. Omarova

Cornell Law Faculty Publications

Much American electoral and policy debate now centers on how best to reignite the nation’s economic dynamism and rebuild its competitive strength. Any such undertaking presents an extraordinary challenge, demanding a correspondingly extraordinary institutional response. This Article proposes precisely such a response. It designs and advocates a new public instrumentality--a National Investment Authority (“NIA”)--charged with the critical task of devising and implementing a comprehensive long-term development strategy for the United States.

Patterned in part after the New Deal-era Reconstruction Finance Corporation, in part after modern sovereign wealth funds, and in part after private equity and venture capital firms, the NIA …

Delegating For Trust, Edward H. Stiglitz

Cornell Law Faculty Publications

Courts and legal observers have long been concerned by the scope of authority delegated to administrative agencies. The dominant explanation of delegated authority is that it is necessary to take advantage of administrative agencies' expertise and expansive rulemaking capacity. Though this explanation makes sense in many settings, it falters in many areas and has given rise to a number of longstanding puzzles, such as why Congress does not invest in its own institutional capacity.

Unrecognized in this debate over the puzzles of delegation is that Congress may delegate to take advantage of another distinctive attribute of administrative decisionmaking: the credible …

Forces Of Federalism, Safety Nets, And Waivers, Edward H. Stiglitz

Cornell Law Faculty Publications

Inequality is the defining feature of our times. Many argue it calls for a policy response, yet the most obvious policy responses require legislative action. And if inequality is the defining feature of our times, partisan acrimony and gridlock are the defining features of the legislature. So being, it is worth considering what role administrative agencies, and administrative law, might play in ameliorating or exacerbating economic inequality. Here, I focus on American safety net programs, many of which are joint operations between federal administrative agencies and state governments. In this context, a central mode of bureaucratic policy innovation comes in …

Gridlock?, Josh Chafetz

Cornell Law Faculty Publications

No abstract provided.

Strategic Rulemaking Disclosure, Jennifer Nou, Edward H. Stiglitz

Cornell Law Faculty Publications

Congressional enactments and executive orders instruct agencies to publish their anticipated rules in what is known as the Unified Agenda. The Agenda’s stated purpose is to ensure that political actors can monitor regulatory development. Agencies have come under fire in recent years, however, for conspicuous omissions and irregularities. Critics allege that agencies hide their regulations from the public strategically, that is, to thwart potential political opposition. Others contend that such behavior is benign, perhaps the inevitable result of changing internal priorities or unforeseen events.

To examine these competing hypotheses, this Article uses a new dataset spanning over thirty years of …

The Problem With Words: Plain Language And Public Participation In Rulemaking, Cynthia R. Farina, Mary J. Newhart, Cheryl Blake

Cornell Law Faculty Publications

This Article, part of the special issue commemorating the fiftieth anniversary of the Administrative Conference of the United States (“ACUS”), situates ACUS’s recommendations for improving public rulemaking participation in the context of the federal “plain language” movement. The connection between broader, better public participation and more comprehensible rulemaking materials seems obvious, and ACUS recommendations have recognized this connection for almost half a century. Remarkably, though, the series of presidential and statutory plain-language directives on this topic have not even mentioned the relationship of comprehensibility to participation until very recently. In 2012, the Office of Information and Regulatory Affairs (“OIRA”) issued …

Public Actors In Private Markets: Toward A Developmental Finance State, Robert C. Hockett, Saule T. Omarova

Cornell Law Faculty Publications

The recent financial crisis brought into sharp relief fundamental questions about the social function and purpose of the financial system, including its relation to the “real” economy. This Article argues that, to answer these questions, we must recapture a distinctively American view of the proper relations among state, financial market, and development. This programmatic vision – captured in what we call a “developmental finance state” – is based on three key propositions: (1) that economic and social development is not an “end-state” but a continuing national policy priority; (2) that the modalities of finance are the most potent means of …

Democratic Deliberation In The Wild: The Mcgill Online Design Studio And The Regulationroom Project, Cynthia R. Farina, Hoi Kong, Cheryl Blake, Mary J. Newhart, Nik Luka

Cornell Law Faculty Publications

Although there is no single unified conception of deliberative democracy, the generally accepted core thesis is that democratic legitimacy comes from authentic deliberation on the part of those affected by a collective decision. This deliberation must occur under conditions of equality, broadmindedness, reasonableness, and inclusion. In exercises such as National Issue forums, citizen juries, and consensus conferences, deliberative practitioners have shown that careful attention to process design can enable ordinary citizens to engage in meaningful deliberation about difficult public policy issues. Typically, however, these are closed exercises-that is, they involve a limited number of participants, often selected to achieve a …

Unitary Innovations And Political Accountability, Edward H. Stiglitz

Cornell Law Faculty Publications

An important trend in administrative and constitutional law is to attempt to concentrate ever-greater control over the administrative state in the hands of the President. As the Supreme Court recently reminded us in Free Enterprise Fund v. Public Company Accounting Oversight Board, one foundation for this doctrinal trend is a fear that diffusing power diffuses accountability. Here, I study whether institutional innovations resulting from such judicial decisions support this functionalist constitutional value of political accountability, emphasizing under-appreciated complications arising out of interbranch relations. For most of the Article, I conduct an indepth empirical case study of the legislative veto, one …

The Value Of Words: Narrative As Evidence In Policymaking, Dmitry Epstein, Josiah Heidt, Cynthia R. Farina

Cornell Law Faculty Publications

Policymakers today rely primarily on statistical, financial, and other forms of technical data as their basis for decision-making. Yet, there is a potentially underestimated value in substantive reflections of the members of the public who will be affected by a particular piece of regulation. We discuss the value of narratives as input in the policy making process, based on our experience with Regulation Room–a product of an interdisciplinary initiative using innovative web technologies in real-time online experimentation. We describe professional policymakers and professional commenters as a community of practice that has limited shared repertoire with the lay members of the …

Unaccountable Midnight Rulemaking? A Normatively Informative Assessment, Edward H. Stiglitz

Cornell Law Faculty Publications

Under a common view, the administrative state inherits democratic legitimacy from the President, an individual who is envisioned both to control administrative agencies and to be electorally accountable. Presidents' administrations continue issuing rules, however, even after Presidents lose elections. Conventional wisdom holds that Presidents use the "midnight" period of their administrations-the period between the election and the inauguration of the next President-to issue unpopular and controversial rules. Many regard this midnight regulatory activity as democratically illegitimate. Yet we have scant evidence that presidential administrations in fact issue controversial or unpopular rules during the midnight period. In this Article, I examine …

Is New Governance The Ideal Architecture For Global Financial Regulation?, Annelise Riles

Cornell Law Faculty Publications

A central challenge for international financial regulatory systems today is how to manage the impact of global systemically important financial institutions (G-SIFIs) on the global economy, given the interconnected and pluralistic nature of regulatory regimes. This paper focuses on the Financial Stability Board (FSB) and proposes a new research agenda for the FSB’s emerging regulatory forms. In particular, it examines the regulatory architecture of the New Governance (NG), a variety of approaches that are supposed to be more reflexive, collaborative, and experimental than traditional forms of governance. A preliminary conclusion is that NG tools may be effective in resolving some …

Rulemaking 2.0, Cynthia R. Farina, Mary J. Newhart, Claire Cardie, Dan Cosley, Cornell Erulemaking Initiative

Cornell Law Faculty Publications

In response to President Obama's Memorandum on Transparency and Open Government, federal agencies are on the verge of a new generation in online rulemaking. However, unless we recognize the several barriers to making rulemaking a more broadly participatory process, and purposefully adapt Web 2.0 technologies and methods to lower those barriers, Rulemaking 2.0 is likely to disappoint agencies and open-government advocates alike.

This article describes the design, operation, and initial results of Regulation Room, a pilot public rulemaking participation platform created by a cross-disciplinary group of Cornell researchers in collaboration with the Department of Transportation. Regulation Room uses selected live …

Rulemaking In 140 Characters Or Less: Social Networking And Public Participation In Rulemaking, Cynthia R. Farina, Paul Miller, Mary J. Newhart, Claire Cardie, Dan Cosley, Rebecca Vernon

Cornell Law Faculty Publications

Rulemaking—the process by which administrative agencies make new regulations—has long been a target for egovernment efforts. The process is now one of the most important ways the federal government makes public policy. Moreover, transparency and participation rights are already part of its legal structure. The first generation of federal erulemaking involved putting the conventional process online by creating an e-docket of rulemaking materials and allowing online submission of public comments. Now the Obama administration is urging agencies to embark on the second generation of technology-assisted rulemaking, by bringing social media into the process.

In this Article we describe the initial …

Achieving The Potential: The Future Of Federal E-Rulemaking, Report Of The Committee On The Status And Future Of Federal E-Rulemaking, Cynthia R. Farina

Cornell Law Faculty Publications

No abstract provided.

Deconstructing Nondelegation, Cynthia R. Farina

Cornell Law Faculty Publications

This Essay (part of the panel on "The Administrative State and the Constitution" at the 2009 Federalist Society Student Symposium) suggests that the persistence of debates over delegation to agencies cannot persuasively be explained as a determination finally to get constitutional law “right,” for nondelegation doctrine—at least as traditionally stated—does not rest on a particularly sound legal foundation. Rather, these debates continue because nondelegation provides a vehicle for pursuing a number of different concerns about the modern regulatory state. Whether or not one shares these concerns, they are not trivial, and we should voice and engage them directly rather than …

The "Hidden Judiciary": An Empirical Examination Of Executive Branch Justice, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich

Cornell Law Faculty Publications

Administrative law judges attract little scholarly attention, yet they decide a large fraction of all civil disputes. In this Article, we demonstrate that these executive branch judges, like their counterparts in the judicial branch, tend to make predominantly intuitive rather than predominantly deliberative decisions. This finding sheds new light on executive branch justice by suggesting that judicial intuition, not judicial independence, is the most significant challenge facing these important judicial officers.

A Study In Rule-Specific Issue Categorization For E-Rulemaking, Claire Cardie, Cynthia R. Farina, Adil Aijaz, Matt Rawding, Stephen Purpura

Cornell Law Faculty Publications

We address the e-rulemaking problem of categorizing public comments according to the issues that they address. In contrast to previous text categorization research in e-rulemaking, and in an attempt to more closely duplicate the comment analysis process in federal agencies, we employ a set of rule-specific categories, each of which corresponds to a significant issue raised in the comments. We describe the creation of a corpus to support this text categorization task and report interannotator agreement results for a group of six annotators. We outline those features of the task and of the e-rulemaking context that engender both a non-traditional …

The State Attorney General And Preemption, Trevor W. Morrison

Cornell Law Faculty Publications

According to the National Association of Attorneys General, "the rise of preemption of state laws and regulations by federal administrative agencies, rather than directly by Congress" is "[p]erhaps the most significant development in federal preemption in the last several decades." This kind of preemption is typically claimed in an agency ruling or regulation declaring certain state laws or activities preempted, even though the underlying statute says nothing about preemption in those areas. That an association of state attorneys general would view "agency preemption" as particularly worrisome is hardly surprising: the main casualties are often state attorneys general, whose broad investigative …

Achieving The Potential: The Future Of Federal E-Rulemaking: A Report To Congress And The President, Committee On The Status And Future Of Federal E-Rulemaking (U.S.), Cynthia R. Farina

Cornell Law Faculty Publications

Federal regulations are among the most important and widely used tools for implementing the laws of the land – affecting the food we eat, the air we breathe, the safety of consumer products, the quality of the workplace, the soundness of our financial institutions, the smooth operation of our businesses, and much more. Despite the central role of rulemaking in executing public policy, both regulated entities (especially small businesses) and the general public find it extremely difficult to follow the regulatory process; actively participating in it is even harder.

E-rulemaking is the use of technology (particularly, computers and the World …

Rulemaking Versus Adjudication: A Psychological Perspective, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Legal systems make law in one of two ways: by abstracting general principles from the decisions made in individual cases (through the adjudicative process) or by declaring general principles through a centralized authority that are to be applied in individual cases (through the rulemaking process). Administrative agencies have long had the unfettered authority to choose between the two methods. Although each method could identify the same solution to the legal issues that come before them, in practice, the two systems commonly settle upon different resolutions. Each system presents the underlying legal issue from a different cognitive perspective, highlighting and hiding …

Cognitive Psychology And Optimal Government Design, Jeffrey J. Rachlinski, Cynthia R. Farina

Cornell Law Faculty Publications

Blackletter Statement Of Federal Administrative Law: Standing, Cynthia R. Farina

Cornell Law Faculty Publications

No abstract provided.

Getting Beyond Cynicism: New Theories Of The Regulatory State. Foreword: Post-Public Choice?, Cynthia R. Farina, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Faith, Hope, And Rationality Or Public Choice And The Perils Of Occam's Razor, Cynthia R. Farina

Cornell Law Faculty Publications

Regulatory Improvement Legislation: Risk Assessment, Cost-Benefit Analysis, And Judicial Review, Fred Anderson, Mary Ann Chirba-Martin, E. Donald Elliott, Cynthia R. Farina, Ernest Gellhorn, John D. Graham, C. Boyden Gray, Jeffrey Holmstead, Ronald M. Levin, Lars Noah, Katherine Rhyne, Jonathan Baert Weiner

Cornell Law Faculty Publications

As the number, cost, and complexity of federal regulations have grown over the past twenty years, there has been growing interest in the use of analytic tools such as risk assessment and cost-benefit analysis to improve the regulatory process. The application of these tools to public health, safety, and environmental problems has become commonplace in the peer-reviewed scientific and medical literatures. Recent studies prepared by Resources for the Future, the American Enterprise Institute, the Brookings Institution, and the Harvard Center for Risk Analysis have demonstrated how formal analyses can and often do help government agencies achieve more protection against hazards …

Undoing The New Deal Through The New Presidentialism, Cynthia R. Farina

Cornell Law Faculty Publications

On Misusing “Revolution” And “Reform”: Procedural Due Process And The New Welfare Act, Cynthia R. Farina

Cornell Law Faculty Publications

After a long dry spell, the debate over procedural due process flows again. The Supreme Court has announced the first major doctrinal revision in years; Congress has gutted the regulatory program that underlay Goldberg v. Kelly; and Richard Pierce has published an essay in the Columbia Law Review prophesying a radical de-evolution of due process doctrine that will bring constitutional law into line with the profound political and social revolution evidenced by welfare “reform.” My essay takes Professor Pierce's recent work as a springboard for reengaging the debate about the direction of procedural due process. I begin by recapitulating …

Commentary On Presentations Of Prof. Roberta S. Karmel & Prof. James A. Fanto, Gregory S. Alexander

Cornell Law Faculty Publications

The Consent Of The Governed: Against Simple Rules For A Complex World, Cynthia R. Farina

Cornell Law Faculty Publications

Professor Farina argues that recent proponents of enhanced presidential power overstate the ability of the President to legitimize the regulatory state. It accuses pro-presidentialists of premising their claims on a conception of the "will of the people" that is neither an accurate description of how citizens actually participate in modern government nor an authentic constitutional understanding of how citizens would consent to public policy decisions. The paper concludes by insisting that no single mode of democratic legitimization can "save" the regulatory enterprise; rather, administrative law must look to a plurality of institutions and practices that contribute to an ongoing process …