Law Commons^™

The Ecology Of Transparency Reloaded, Seth F. Kreimer

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As Justice Stewart famously observed, "[t]he Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act." What the Constitution's text omits, the last two generations have embedded in "small c" constitutional law and practice in the form of the Freedom of Information Act and a series of overlapping governance reforms including Inspectors General, disclosure of political contributions, the State Department’s “Dissent Channel,” the National Archives Information Security Oversight Office, and the publication rights guaranteed by New York Times v. United States. These institutions constitute an ecology of transparency.

The late Justice Scalia argued that the …

Administrative Equal Protection: Federalism, The Fourteenth Amendment, And The Rights Of The Poor, Karen M. Tani

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This Article intervenes in a burgeoning literature on “administrative constitutionalism,” the phenomenon of federal agencies — rather than courts — assuming significant responsibility for elaborating the meaning of the U.S. Constitution. Drawing on original historical research, I document and analyze what I call “administrative equal protection”: interpretations of the Fourteenth Amendment’s Equal Protection Clause in a key federal agency at a time when the Clause’s meaning was fiercely contested. These interpretations are particularly important because of their interplay with cooperative federalism — specifically, with states’ ability to exercise their traditional police power after accepting federal money.

The Article’s argument is …

Drones, Henry H. Perritt Jr., Eliot O. Sprague

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Abstract

Drone technology is evolving rapidly. Microdrones—what the FAA calls “sUAS”—already on the market at the $1,000 level, have the capability to supplement manned helicopters in support of public safety operations, news reporting, and powerline and pipeline patrol, when manned helicopter support is infeasible, untimely, or unsafe.

Larger drones–"machodrones”–are not yet available outside battlefield and counterterrorism spaces. Approximating the size of manned helicopters, but without pilots, or with human pilots being optional, their design is still in its infancy as designers await greater clarity in the regulatory requirements that will drive airworthiness certification.

This article evaluates drone technology and design …

Moving Forward With Regulatory Lookback, Cary Coglianese

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President Obama has rightly called on government agencies to establish ongoing routines for reviewing existing regulations to determine if they need modification or repeal. Over the last two years, the White House Office of Information and Regulatory Affairs (OIRA) has overseen a signature regulatory “lookback” initiative that has prompted dozens of federal agencies to review hundreds of regulations. This regulatory initiative represents a good first step toward increasing the retrospective review of regulation, but by itself will do little to build a lasting culture of serious regulatory evaluation. After all, past administrations have made similar review efforts, but these ad …

Enhancing Public Access To Online Rulemaking Information, Cary Coglianese

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One of the most significant powers exercised by federal agencies is their power to make rules. Given the importance of agency rulemaking, the process by which agencies develop rules has long been subject to procedural requirements aiming to advance democratic values of openness and public participation. With the advent of the digital age, government agencies have engaged in increasing efforts to make rulemaking information available online as well as to elicit public participation via electronic means of communication. How successful are these efforts? How might they be improved? In this article, I investigate agencies’ efforts to make rulemaking information available …

Punishment And Work Law Compliance: Lessons From Chile, César F. Rosado Marzán

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Workplace law activists and reformers find it increasingly more difficult to obtain redress for violation of workers’ rights. Some of them are calling for stricter enforcement and tougher penalties to bring employers into compliance. However, after seven and half months of participant observation at the Labor Directorate and the labor courts of Chile, institutions that use punishment as their main tools of enforcement, I am skeptical about the likelihood of success of mere punishment for effective workplace law enforcement and compliance. I am skeptical even though Chile is a country recognized as the Latin American “jaguar” for its successful economy …

Allocating Power Within Agencies, Elizabeth Magill, Adrian Vermeule

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Standard questions in the theory of administrative law involve the allocation of power among legislatures, courts, the President, and various types of agencies. These questions are often heavily informed by normative commitments to particular allocations of governmental authority among the three branches of the national government. These discussions, however, are incomplete because agencies are typically treated as unitary entities. In this essay, we examine a different question: How does administrative law allocate power within agencies? Although scholars have sometimes cracked open the black box of agencies to peer inside, their insights are localized and confined to particular contexts. We will …

Race, Sex, And Rulemaking: Administrative Constitutionalism And The Workplace, 1960 To The Present, Sophia Z. Lee

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This Article uses the history of equal employment rulemaking at the Federal Communications Commission (FCC) and the Federal Power Commission (FPC) to document and analyze, for the first time, how administrative agencies interpret the Constitution. Although it is widely recognized that administrators must implement policy with an eye on the Constitution, neither constitutional nor administrative law scholarship has examined how administrators approach constitutional interpretation. Indeed, there is limited understanding of agencies’ core task of interpreting statutes, let alone of their constitutional practice. During the 1960s and 1970s, officials at the FCC relied on a strikingly broad and affirmative interpretation of …

Regulatory Adjudication, Marcia L. Mccormick

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Calls for increased regulation are flying fast and furious these days. We use regulation in the United States to prevent harm that various kinds of activities might cause and also to create positive external benefits that those activities could yield, but might not without incentives. Most regulatory programs in the United States provide a blend of measures designed to create these positive external benefits, promote good practices in the industry, prevent harms, and provide those harmed with remedies. At a time in which we contemplate new ways to regulate to deal with the crises of the day and prevent the …

Top Cop Or Regulatory Flop? The Sec At 75, Jill E. Fisch

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In their forthcoming article, Redesigning the SEC: Does the Treasury Have a Better Idea?, Professors John C. Coffee, Jr., and Hillary Sale offer compelling reasons to rethink the SEC’s role. This article extends that analysis, evaluating the SEC’s responsibility for the current financial crisis and its potential future role in regulation of the capital markets. In particular, the article identifies critical failures in the SEC’s performance in its core competencies of enforcement, financial transparency, and investor protection. The article argues that these failures are not the result, as suggested by the Treasury Department Blueprint, of a balkanized regulatory system. Rather, …

The Managerial Turn In Environmental Policy, Cary Coglianese

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No abstract provided.

Temporary Accidents?, Elizabeth Magill

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Review of Steven P. Croley, Regulation and Public Interests: The Possibility of Good Regulatory Government (Princeton: Princeton University Press, 2007).

Citizen Participation In Rulemaking: Past, Present, And Future, Cary Coglianese

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Administrative law scholars and governmental reformers argue that advances in information technology will greatly expand public participation in regulatory policy making. They claim that e-rulemaking, or the application of new technology to administrative rulemaking, promises to transform a previously insulated process into one in which ordinary citizens regularly provide input. With the federal government having implemented several e-rulemaking initiatives in recent years, we can now begin to assess whether such a transformation is in the works—or even on the horizon. This paper compares empirical observations on citizen participation in the past, before e-rulemaking, with more recent data on citizen participation …

Agency Choice Of Policymaking Form, Elizabeth Magill

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An administrative agency delegated some task--protect the environment, assure the integrity of the securities markets, improve auto safety--might carry out that obligation by adopting a rule, bringing or deciding a case, or announcing its interpretation of the statute. Although agencies are unique institutions in this respect, this state of affairs generates little comment. This Article aims to rectify that by identifying, evaluating, and coming to terms with the phenomenon of agency choice of policymaking form. That phenomenon can be simply stated: The typical administrative agency is authorized to use a range of distinct policymaking forms to effectuate its statutory mandate …

The Unitary Executive During The Third Half-Century, 1889-1945, Christopher S. Yoo, Steven G. Calabresi, Laurence D. Nee

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Recent Supreme Court decisions and the impeachment of President Clinton has reinvigorated the debate over Congress's authority to employ devices such as special counsels and independent agencies to restrict the President's control over the administration of the law. The initial debate focused on whether the Constitution rejected the executive by committee employed by the Articles of the Confederation in favor of a unitary executive, in which all administrative authority is centralized in the President. More recently, the debate has begun to turn towards historical practices. Some scholars have suggested that independent agencies and special counsels have become such established features …

The Unitary Executive During The Second Half-Century, Steven G. Calabresi, Christopher S. Yoo

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Recent Supreme Court decisions and political events have reinvigorated the debate over Congress's authority to restrict the President's control over the administration of the law. The initial debate focused on whether the Constitutional Convention rejected the executive by committee employed by the Articles of the Confederation in favor of a unitary executive in which all administrative authority is centralized in the President. More recently, the debate has turned towards historical practices. Some scholars have suggested that independent agencies and special counsels have become such established features of the constitutional landscape as to preempt arguments in favor of the unitary executive. …

Bounded Evaluation: Cognition, Incoherence, And Regulatory Policy, Cary Coglianese

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Cass Sunstein, Daniel Kahneman, David Schkade, and Ilana Ritov have recently advanced a cognitive explanation for incoherence in legal decisionmaking, showing how decision makers tend to make micro-level judgments that make little sense when viewed from a broader perspective. Among other things, they claimed to have discovered striking incoherence in regulatory policy evidenced by varied penalty levels across different statutes, with less serious violations sometimes backed up with higher penalties than more serious violations. This paper comments on Sunstein et al.'s treatment of incoherence in regulatory policy, arguing that the same cognitive limitations that Sunstein et al. argue lead to …

Empirical Analysis And Administrative Law, Cary Coglianese

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Empirical research has been used to study many areas of law, including administrative law. In this article Professor Coglianese discusses the current and future role of empirical research in understanding and improving administrative rulemaking. Criticism of government regulation and calls for regulatory reform have grown in the last few decades. Empirical research is a valuable tool for designing reforms that will truly improve the effectiveness, efficiency, and legitimacy of regulatory governance. Specifically, Professor Coglianese discusses three areas of administrative law that have benefited from empirical research—economic review of new regulations, judicial review of agency rulemaking, and negotiated rulemaking.

Agencies are …

Towards A Hybrid Regulatory Scheme For The Internet, Henry H. Perritt Jr.

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No abstract provided.

International Administrative Law For The Internet: Mechanisms Of Accountability, Henry H. Perritt Jr.

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No abstract provided.

Electronic Freedom Of Information, Henry H. Perritt Jr.

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No abstract provided.

Assessing Consensus: The Promise And Performance Of Negotiated Rulemaking, Cary Coglianese

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Over its thirteen year history, the negotiated rulemaking process has yielded only thirty-five final administrative rules. By comparison, the federal government publishes over 3,000 final rules each year through the ordinary notice-and- comment process. Why have federal agencies relied so little on negotiated rulemaking? I examine this question by assessing the impact of negotiating rulemaking on its two major purposes: (1) reducing rulemaking time; and (2) decreasing the amount of litigation over agency rules. My analysis suggests that the asserted problems used to justify negotiated rulemaking have been overstated and that the limitations of negotiated rulemaking have been understated. Negotiated …

The Unitary Executive During The First Half-Century, Steven G. Calabresi, Christopher S. Yoo

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Recent Supreme Court decisions and the impeachment of President Clinton has reinvigorated the debate over Congress’s authority to employ devices such as special counsels and independent agencies to restrict the President’s control over the administration of the law. The initial debate focused on whether the Constitution rejected the “executive by committee” employed by the Articles of the Confederation in favor of a “unitary executive,” in which all administrative authority is centralized in the President. More recently, the debate has begun to turn towards historical practices. Some scholars have suggested that independent agencies and special counsels have become such established features …

Ways To Think About The Unitary Executive: A Comment On Approaches To Government Structure, Michael A. Fitts

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No abstract provided.

The Electronic Agency And The Traditional Paradigms Of Administrative Law, Henry H. Perritt Jr.

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No abstract provided.

Controlling Congress: Presidential Influence In Domestic Fiscal Policy, Michael A. Fitts, Robert Inman

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No abstract provided.

Can Ignorance Be Bliss? Imperfect Information As A Positive Influence In Political Insitutions, Michael A. Fitts

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No abstract provided.

Federal Electronic Information Policy, Henry H. Perritt Jr.

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No abstract provided.

Retaining The Rule Of Law In A Chevron World, Michael A. Fitts

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No abstract provided.

Electronic Acquisition And Release Of Federal Agency Information: Analysis Of Recommendations Adopted By The Administrative Conference Of The United States, Henry H. Perritt Jr.

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No abstract provided.