Monthly Archives: October 2011

Coordinating Agencies

Jody Freeman & Jim Rossi, Agency Coordination in Shared Regulatory Space, 125 Harv. L. Rev. ____ (Forthcoming 2012), available at SSRN.

Areas of fragmented and overlapping delegations of power to administrative agencies are common today. For example, fifteen federal agencies play roles in the American food safety arena. Similarly, twelve different agencies deal with exports, and numerous agencies regulate the financial sector, including the SEC, CFTC, OCC, FHA, FDIC, OTS and the Federal Reserve. In addition, as President Obama recently quipped during a State of the Union Address, we have one agency (the Department of the Interior) that is in charge of salmon while they are in fresh water, but a different one (the Department of Commerce) that handles them when they are in saltwater.

Despite the prevalence of these sorts of overlapping delegations in the regulatory arena, legal scholars generally have approached administrative law through a single-agency lens. In a forthcoming Harvard Law Review article titled Agency Coordination in Shared Regulatory Space, Professors Jody Freeman and Jim Rossi seek to change this picture. Specifically, Professors Freeman and Rossi depart from what they call the “single-agency focus that is so foundational to administrative law” by offering the “first comprehensive discussion in the legal literature of the problem of fragmented and overlapping delegations of power by Congress to administrative agencies.” Continue reading "Coordinating Agencies"

The Impairment of Public Sector Collective Bargaining Agreements

The great recession has hit state and local governments nationwide very hard.  Many have turned to the unions that represent their employees for wage, benefits and work rule concessions in an effort to reduce expenditures.  When they have been unable to secure such concessions, they have resorted to unilateral action abrogating their collective bargaining agreements.  Their actions have taken many forms.  Some are redressable under the contract’s grievance and arbitration procedures or in unfair labor practice proceedings before the state public sector labor relations agency.  However, in many cases such redress is not available, leaving the only avenue an action alleging an unconstitutional impairment of contract.

Stephen Befort‘s article, “Unilateral Alteration of Public Sector Collective Bargaining Agreements and the Contract Clause,” tackles head on the extremely important and timely topic of when unilateral modifications of public employee collective bargaining agreements in response to fiscal crises constitute an unconstitutional impairment of contract.  Befort first provides a brief background on the development of public sector labor law and public sector collective bargaining.   He observes that where unilateral modification of public employees’ collective bargaining agreements is accomplished through legislation, public sector labor relations acts are of little utility because the legislature is not the employer.  Consequently, the only generally available avenue of contest is under the Contract Clause of the Constitution.  Befort then provides useful and detailed background to the development of Contract Clause jurisprudence in general. Continue reading "The Impairment of Public Sector Collective Bargaining Agreements"

Constitutional Change and Living Trees

David A. Strauss, The Living Constitution (Oxford University Press, 2010).

David Strauss has written an elegant and compelling book, the distillation of his work on constitutional interpretation over the last decade or more.   His argument is at once positive and normative. Strauss argues that most U.S. constitutional interpretation – and some of the most important and foundational of the Supreme Court’s constitutional decisions – can only be understood as a form of common law adjudication, developed over time based on practice and precedent far more than on constitutional text.  As a normative matter, Strauss argues that living constitutionalism, developed and constrained through the methods of common law adjudication, is a superior approach to interpreting the Constitution than is originalism.   Those not familiar with Strauss’ work should read the book; those who are will still enjoy the concision and insight with which his prior articles have been distilled.

The first two chapters include his attack on originalism and his defense of the virtues of common law constitutional adjudication.  The attack on originalism synthesizes critiques of the impossibility, and undesirability, of the kind of “constraint” imposed by originalism’s commitment to interpreting in light of specific original understandings, including the difficulty of reconstruction, the challenges of “translation” and the democratic challenge of giving controlling force to the original understandings of an instrument intended for present governance. Moderate originalism, he argues, in its appeal to general principles diminishes the key feature of constraint that originalism’s proponents emphasize. Continue reading "Constitutional Change and Living Trees"