E-Government and Inequality in Public Participation

Sep 27, 2010 Cary CoglianeseAdministrative Law

Cary Coglianese

E-government initiatives by both political parties have sought to broaden citizen participation in the policy process.  The Clinton Administration made early forays into digital government, and the Bush Administration pursued still more substantial efforts by establishing the portal known as Regulations.Gov.  The Obama Administration has launched a major Open Government Initiative that seeks to foster unprecedented levels of transparency and expand participation to counteract the undue influence of the much-castigated “special interests.”   Will e-government efforts like these transform American democracy as proponents sometimes suggest?  The Internet’s ability to strengthen public engagement in the policy process remains an open – ultimately empirical – question.  The early returns, from the late 1990s and early 2000s, appeared rather modest.  As of at least four years ago, the clear weight of the evidence showed that most agency rulemaking escaped participation by ordinary members of the public – even following the advent of the Internet.   Of course, in this fast changing world, a few years can make an enormous difference.  Over the past several years, we have witnessed not only the emergence of Web 2.0 but also the extensive use of the Internet by political candidates, especially Barack Obama in 2008.

A study in the most recent issue of the journal Perspectives on Politics, however, finds little has changed, confirming that the Internet has yet to transform policymaking and politics into a more egalitarian, citizen-centric process.  In “Weapon of the Strong? Participatory Inequality and the Internet,” three distinguished political scientists – Kay Lehman Schlozman (Boston College), Sidney Verba (Harvard), and Henry Brady (UC-Berkeley) – analyze data from one of the most systematic surveys to date on the Internet and public participation, concluding that information technology has made virtually no difference in general patterns of political participation.  Their representative survey of over 2,200 Americans, conducted in August 2008 in cooperation with the Pew Foundation’s Internet and American Life Project, tracked both online and offline citizen participation in politics and policymaking. Continue reading "E-Government and Inequality in Public Participation"

Grappling with the (In?)significance of Doctrine in Judicial Review

Aug 16, 2010 Kathryn WattsAdministrative Law

Kathryn Watts

One of the “hotter” areas of administrative law scholarship in the last few years has been the empirical study of the role of legal doctrine in judicial review of agency action.  In a recent Virginia Law Review article titled Reasonable Agencies, Professor David Zaring adds to this growing body of scholarship by reporting new empirical research on appellate courts’ review of agencies’ formal findings of fact using substantial evidence review.  His main goal, however, is not simply to add yet another empirical study to the pile.  Rather, Professor Zaring draws upon the important empirical work done by others, such as Thomas Miles, Cass Sunstein, William Eskridge, Lauren Baer, Kristin Hickman and Matthew Krueger, and he aggregates the various studies in a way that has not been done before.  Ultimately, his goal is to draw broad conclusions about how courts apply administrative law’s complex judicial review doctrines and to argue that the law of judicial review descriptively has been and normatively should be simplified into one “reasonable agency” standard.

Professor Zaring begins by surveying the law of judicial review and summarizing six different administrative law doctrines that he identifies:  (1) Chevron deference used to review agency interpretations of ambiguous statutes; (2) the less deferential Skidmore standard, which applies when Chevron’s stronger version of deference is inapplicable; (3) de novo review; (4) arbitrary and capricious review applied to informal factual findings; (5) substantial evidence review applied to formal factual findings; and (6) general arbitrariness review used to test the rationality of agency decisions or the adequacy of reasons given.  As Professor Zaring describes, determining exactly which of these standards of review to apply can be a daunting task for courts and litigants, forcing them to sort through many complicated questions, such as whether the agency action involved fact finding, legal interpretation, or policymaking. Continue reading "Grappling with the (In?)significance of Doctrine in Judicial Review"

Institutional Design by Default

Jul 5, 2010 Michael E HerzAdministrative Law

Michael E Herz

The central concern of administrative law is how to control agency discretion.  Agencies are handed enormous authority, and administrative law consists primarily – indeed, almost exclusively – of a set of doctrines designed to inform, curb, or enable other actors to oversee discretionary agency actions.   Administrative law is preoccupied with establishing procedures to prevent agency abuse and designing oversight by non-agency players – the President, Congress, private stakeholders, and, most obviously, the judiciary.    All the core doctrines of administrative law are generally understood as implementing basic decisions regarding institutional choice: who does what?  How should power be divided up amongst these institutions?

In Allocating Powers Within Agencies, Elizabeth Magill and Adrian Vermeule convincingly argue that in operation core administrative law doctrines are not only about institutional choice but also institutional design.  That is, they do not merely allocate authority between agencies and other actors; they also have important consequences for who does what within agencies, for how the institution is designed.  The paper elegantly reviews a number of familiar doctrines and explains the impact they have on how power is allocated within agencies.  The article’s title seems to portend a discussion of how to go about constructing agency organizational charts.  In fact, the article is not about such conscious allocation of responsibility at all.  Rather, it explains how doctrines established without consideration for their impact on internal agency operations do in fact significantly affect how power is allocated within agencies.  It thus makes an explicit and implicit plea that these impacts be thought through rather than incidental and haphazard. Continue reading "Institutional Design by Default"

“Probabilistic Injury”: The Odds Aren’t Good

May 10, 2010 William FunkAdministrative Law

William Funk

The case of Summers v. Earth Island Institute, 129 S.Ct. 1142 (2009), is notable from several administrative law perspectives, but potentially its major impact is one that many commentators have missed – its rejection of “probabilistic standing.”  In Summers, Justice Scalia, writing for the Court, rejected out of hand Justice Breyer’s suggestion that the plaintiff environmental groups had satisfied the “injury” prong of standing by showing “a realistic likelihood” of injury to one or more of their members.  Characterizing this suggestion as “a hitherto unheard-of test for organizational standing,” Justice Scalia wrote that to accept as “injury” the fact that “there is a statistical probability that some of those members are threatened with concrete injury” would “make a mockery of our prior cases, which have required plaintiff-organizations to make specific allegations establishing that at least one identified member had suffered or would suffer harm.”

If Justice Scalia had not heard of probabilistic injury before, he has not been reading the numerous circuit court decisions addressing the probability of injury and when it is sufficient for standing.  But Professor Mank has, and even before Summers he authored an article, Standing and Statistical Persons: A Risk-Based Approach to Standing, 36 Ecology L.Q. 665 (2009), dealing with the subject.  In his most recent article, however, he takes it a step further, addressing Justice Scalia’s opinion for the majority in Summers and Justice Breyer’s for the dissent, relating them to some of the lower court opinions dealing with probabilistic injury, in particular two D.C. Circuit decisions, Public Citizen v. National Highway Traffic Safety Administration, 489 F.3d 1279 (2007), modified on rehearing, 513 F.3d 234 (D.C. Cir. 2008), and Natural Resources Defense Council v. EPA, 440 F.3d 476, withdrawn, 464 F.3d 1 (D.C. Cir. 2006).  In addition, Professor Mank explains how all these cases relate to the Supreme Court’s earlier decision in Friends of the Earth, Inc. v. Laidlaw Env. Services, Inc., 528 U.S. 167 (2000). Continue reading "“Probabilistic Injury”: The Odds Aren’t Good"

Might the Motivation for Agency Guidance Be the Public’s Need for Guidance?

Mar 22, 2010 Peter ShaneAdministrative Law

Peter Shane

Ten years ago, Todd Rakoff observed that agencies seemed to be increasing their use of “guidance documents,” in possible preference to rulemaking or adjudication, as a newly preferred method of policy implementation.  Todd D. Rakoff, The Choice Between Formal and Informal Modes of Administrative Regulation, 52 Admin. L. Rev. 159, 167 (2000).  Others – including some casebook authors I know well – have since speculated that the trend might, at least in part, be a strategic reaction to the increased transaction costs associated with issuing substantive administrative rules – for example, having to deal with the Office of Information and Regulatory Affairs in negotiating an acceptable regulatory impact analysis.  See, e.g., Jerry L. Mashaw, Richard A. Merrill and Peter M. Shane, Administrative Law – The American Public Law System:  Cases and Materials 646-647 (6^th ed. 2009).

In Strategic or Sincere?, Connor Raso, who will graduate this spring with both a J.D. from Yale and a Ph.D. in political science from Stanford, has written what protocol requires me to describe as a “Note” casting doubt on this hypothesis.  The Note begins with a section recounting how guidance documents are treated under the law, especially in comparison to substantive or “legislative” rules. Raso then recounts a number of recent studies that assume “that agencies use guidance documents in place of the notice and comment process, and then [debate] reforms to reduce this behavior.”  (798). A third analytic section catalogues potential institutional differences between legislative rules and guidance documents:  guidance documents may attract less political attention (which could be especially attractive if Congress and the President are generating different political signals); they may be harder to challenge in court because of ripeness and standing problems; they are exempt from APA procedural requirements; and their issuance is likely to consume fewer resources of time, personnel, and budget.  On the other hand, guidance documents may be more difficult to enforce (although Raso seems to waiver on this point) and less durable than legislative rules. Continue reading "Might the Motivation for Agency Guidance Be the Public’s Need for Guidance?"

The Nineteenth Century Administrative State

Mar 17, 2010 Richard PierceAdministrative Law

Richard Pierce

Eminent historians, political scientists, and legal academics have long told us that the federal administrative state was almost non-existent until the twentieth century. They were wrong. In a series of four articles published in volumes 115 through 118 of the Yale Law Journal, Jerry Mashaw recounted the rich history of the federal administrative state in the nineteenth century.

The many scholars who believed that the federal administrative state did not exist in the nineteenth century were tricked by our tendency to rely primarily on judicial opinions to inform us of legal developments. There are very few court opinions involving judicial review of federal agency actions in the nineteenth century, but that lack of evidence of the administrative state was attributable to a characteristic of the administrative state at the time—federal agency actions rarely were reviewable in a federal court. The only way a citizen could obtain review of most federal agency actions in the nineteenth century was to sue the individual federal employee in a state court on the basis of some common law doctrine like trespass or conversion. The federal employee would defend his actions on the basis that he was performing duties authorized by federal law. A jury would then decide whether the employee was acting pursuant to law or had violated a common law right. Continue reading "The Nineteenth Century Administrative State"

Everything but the Agency

Feb 5, 2010 Lisa BressmanAdministrative Law

Lisa Bressman

Every so often, an article captures a persistent problem in a particular field.  Phil Weiser has done just that.  “In studying the modern administrative state,” Weiser writes, “legal scholars have failed to do their part in examining the questions related to institutional competence and institutional structure that determine whether administrative regulation can be effective.” Weiser, supra, at 676. He focuses on the institutional failings at the Federal Communication Commission (FCC).  The situation at the FCC is serious, leading Larry Lessig to recommend that Congress abolish the agency. See id. at 677 (citing Lawrence Lessig, Rebooting the FCC, Newsweek.com, Dec. 23, 2008).

Weiser describes the main failing of the FCC as a tendency “toward ad hoc judgments and away from any principled framework for evaluating alternative courses of action.” See id. at 681. The agency has neither articulated general standards for key issues such as spectrum allocation nor engaged in proactive, strategic planning.  To make matters worse, the agency also lacks a capacity for independent research and analysis and relies “’almost exclusively upon information and analysis supplied by’ the parties that appear before it.” See id. at 681-82 (quoting Nicholas Johnson, Towers of Babel: The Chaos in Radio Spectrum Utilization and Allocation, 34 Law & Contemp. Probs. 505, 530 (1969)). As a result, the FCC is easily captured—not so much in the sense that the regulated interests populate its ranks or drive its decisions but in the sense that it is beholden to its own institutional limitations.  In Weiser’s words, the agency suffers from “a failure to approach issues strategically, to develop independent solutions, and anticipate issues ahead of particular crises.” See id. at 684. Weiser’s solution is not to abolish the agency but to repair its institutional processes.  He has a number of concrete suggestions, among them encouraging strategic agenda setting, better use of notice-and-comment rulemaking, upgraded data collection and dissemination, and increased public participation in decisionmaking.  Continue reading "Everything but the Agency"

Meet the Editors

Oct 26, 2009 A. Michael FroomkinAdministrative Law

Section Editors

The Section Editors choose the Contributing Editors and exercise editorial control over their section. In addition, each Section Editor will write at least one contribution (“jot”) per year. Questions about contributing to a section ought usually to be addressed to the section editors.

Professor A. Michael Froomkin
University of Miami School of Law Continue reading "Meet the Editors"

Call For Papers

Oct 25, 2009 adminAdministrative Law

Jotwell: The Journal of Things We Like (Lots) seeks short reviews of (very) recent scholarship related to the law that the reviewer likes and thinks deserves a wide audience. The ideal Jotwell review will not merely celebrate scholarly achievement, but situate it in the context of other scholarship in a manner that explains to both specialists and non-specialists why the work is important.

Although critique is welcome, reviewers should choose the subjects they write about with an eye toward identifying and celebrating work that makes an original contribution, and that will be of interest to others. Please see the Jotwell Mission Statement for more details. Continue reading "Call For Papers"

Jotwell Mission Statement

Oct 19, 2009 adminAdministrative Law

The Journal of Things We Like (Lots)–JOTWELL–invites you to join us in filling a telling gap in legal scholarship by creating a space where legal academics will go to identify, celebrate, and discuss the best new legal scholarship. Currently there are about 350 law reviews in North America, not to mention relevant journals in related disciplines, foreign publications, and new online pre-print services such as SSRN and BePress. Never in legal publishing have so many written so much, and never has it been harder to figure out what to read, both inside and especially outside one’s own specialization. Perhaps if legal academics were more given to writing (and valuing) review essays, this problem would be less serious. But that is not, in the main, our style.

We in the legal academy value originality. We celebrate the new. And, whether we admit it or not, we also value incisiveness. An essay deconstructing, distinguishing, or even dismembering another’s theory is much more likely to be published, not to mention valued, than one which focuses mainly on praising the work of others. Books may be reviewed, but articles are responded to; and any writer of a response understands that his job is to do more than simply agree. Continue reading "Jotwell Mission Statement"