THE COEVOLUTION OF ADMINISTRATIVE LAW WITH EVERYTHING ELSE
J.B. Ruhl
I am, first and foremost, an environmental lawyer. I have practiced, taught, and written in the environmental law field for going on twenty years. That has made me, by necessity, an administrative procedure specialist as well. One cannot practice environmental law at any sophisticated level without knowing the ins and outs of administrative agencies and their powers and procedures. Nevertheless, I remain, at best, a mere dabbler in regulatory theory. And I don’t sense that I am different in that respect from most other veteran environmental lawyers: we know administrative law, but we don’t often delve into pure regulatory theory. Furthermore, I don’t believe environmental lawyers are much different in that respect from the lawyers practicing in other substantive fields touched in some significant way by administrative law.
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PUBLIC INTERESTED REGULATION
Steven P. Croley
Critiques of regulatory government are as old as government regulation itself. They are also often compelling. Indeed, today confidence in public regulatory institutions—in the modern administrative state—risks dismissal as idealistic and uninformed. No doubt this is true in part because of the power of familiar critiques. Often, regulatory bodies appear to cater to the powerful, the well-funded, or the organized. This general dynamic is widely taken to be a consequence of the basic “rules” of modern politics, and not without justification. The combination of elected legislators who require economic resources to maintain their positions, on the one hand, and regulatory agencies that enjoy considerable regulatory power but depend on the legislature for political and budgetary resources, on the other, provides a recipe for a regulatory state that works to advantage well-funded yet narrowly focused political interest groups (“special interests”), at least according to conventional wisdom. Such groups exchange economic and political resources for what are essentially regulatory rents. Regulators deliver those rents as parties to an illicit exchange.
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FAITH, HOPE, AND RATIONALITY OR PUBLIC CHOICE AND THE PERILS OF OCCAM’S RAZOR
Cynthia R. Farina
Every community of believers has a set of creation myths to account for the existence of the universe and to explain the nature and motives of the entities who inhabit it. Such creation myths have both descriptive and predictive functions. Initially, they help the community make sense of the world, imposing a comprehensible pattern on the chaos of external data. At least as important, they then allow the community to anticipate the course of future developments and to shape individual and communal behavior in ways designed to induce propitious outcomes and ward off bad ones.
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INTEREST GROUPS AND PUBLIC INTERESTED REGULATION
Elizabeth Garrett
Steven Croley’s scholarly project develops an alternative vision of administrative process, the model of public interested regulation, and applies that new framework to a series of real world examples to test its explanatory power. Croley’s work is consistent with much of the most promising legal and political science literature, particularly with a body of scholarship often referred to as institutional theories of the political process or the “new institutionalism.” The institutions through which individuals must act, whether singly or as members of groups, profoundly affect their behavior and the outcomes they achieve. Different institutions have different characteristics and operate under different rules and procedures. Moreover, each policy is considered and affected by several different institutions, sometimes simultaneously and sometimes consecutively. Understanding this, players in the political arena will behave strategically, working within and among institutions to align the ultimate policy as closely as possible with their preferences.
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THE CONTRACTING STATE
Jody Freeman
The modern administrative state might aptly be dubbed “the contracting state.” Around the world, governments appear to be both shrinking and outsourcing many of their traditional functions to private parties, sometimes indirectly by devolving power to local governments that themselves depend heavily on private actors. In the United States, federal, state, and local governments now routinely employ contracts with private providers to furnish services, deliver benefits, and perform significant (and sometimes traditionally “public”) functions. Less visibly, a number of federal agencies have begun experimenting with contractual approaches to regulation as well, sometimes pursuant to statutory mandates, and other times as part of agency enforcement discretion. Governments increasingly act in all of their capacities, it seems, via contractual devices.
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MATTHEW D. ADLER
Mark Seidenfeld
What justifies regulatory policy? What are the moral criteria by reference to which regulatory choices and institutions are properly assessed? These questions have yet to be convincingly answered, or so I will argue in this Article. My focus will be legal scholarship, since it is legal scholars who, in recent years, have paid the most sustained attention to the problem of justifying regulation—the problem of generating a moral theory of regulation in light of which general regulatory approaches, specific regulatory decisions, the design of regulatory agencies, and all other aspects of regulation can be evaluated as good or bad, right or wrong.
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BEYOND EFFICIENCY AND PROCEDURE: A WELFARIST THEORY OF REGULATION
Matthew D. Adler
What justifies regulatory policy? What are the moral criteria by reference to which regulatory choices and institutions are properly assessed? These questions have yet to be convincingly answered, or so I will argue in this Article. My focus will be legal scholarship, since it is legal scholars who, in recent years, have paid the most sustained attention to the problem of justifying regulation—the problem of generating a moral theory of regulation in light of which general regulatory approaches, specific regulatory decisions, the design of regulatory agencies, and all other aspects of regulation can be evaluated as good or bad, right or wrong.
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THE REFORMED WELFARE STATE AS THE RADICAL HUMANIST REPUBLIC: AN ENTHUSIASTIC (IF QUALIFIED) ENDORSEMENT OF MATTHEW ADLER’S BEYOND EFFICIENCY AND PROCEDURE
Rob Atkinson
I am happy to find myself in very broad and deep agreement with Professor Adler’s thoroughly thought-provoking paper. He sets out a plausible normative basis for just the kind of administrative system I want to have, what I would call a reformed welfare state. This is the bureaucratic complement to Woodrow Wilson’s New Freedom and Fourteen Points, Franklin Roosevelt’s New Deal and Four Freedoms, and Lyndon Johnson’s Great Society and War on Poverty (and, I have to add, his campaign against communist imperialism). In America, we have no standard name or party that corresponds to this position; in Europe, it is the decades-old platform of the social democrats.
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REGULATORY INCREMENTALISM AND MORAL CHOICES: A COMMENT ON ADLERIAN WELFARISM
Daniel B. Rodriguez
Matthew Adler’s fine paper on welfarism and regulation tackles ambitiously and elegantly the normative foundations of modern regulation. This most recent paper is part of a nice triptych begun with Rethinking Cost-Benefit Analysis and Incommensurability and Cost-Benefit Analysis. In these articles, Professor Adler lays out a deeply reflective case for a welfarist theory of regulation. Moreover, he makes the case, albeit more ambivalently, for cost-benefit analysis as a key part of the template for regulatory choice. In the conclusion to Rethinking Cost-Benefit Analysis, Professors Adler and Posner maintain that “[a]gencies should use [cost-benefit analysis] to evaluate the welfare effect of large projects,” qualifying, however, their recommendation of its use because of potentially negative distributional consequences. Cost-benefit analysis, therefore, should not be used “where wealth differences between those who gain from the project and those who lose are substantial enough.”
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THE GOVERNMENT LITIGANT ADVANTAGE: IMPLICATIONS FOR THE LAW
Linda R. Cohen And Matthew L. Spitzer
Administrative law—whether instantiated in judicial decision-making, law practice, or academic work on administrative law—is rooted in reading cases. The role of cases in judicial decision-making, and in lawyering that depends in no small part upon predicting judicial decision-making, is so obvious as to require no documentation. The case method, rooted in analogical reasoning, suffuses the area.
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WHY DOES A CONSERVATIVE COURT RULE IN FAVOR OF A LIBERAL GOVERNMENT? THE COHEN-SPITZER ANALYSIS AND THE CONSTITUTIONAL SCHEME
Daniel J. Gifford
This paper is a commentary upon the important analytical work done by Linda Cohen and Matthew Spitzer. The focus of my commentary is upon their most recent work, that dealing with the government’s high win-rate before the Supreme Court: The Government Litigant Advantage: Implications for the Law. Although I will focus primarily upon what these authors have to say about the government win-rate before the Court, I will extend my remarks at times to refer to their earlier work on the Supreme Court’s Chevron decision.
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DOES THE SOLICITOR GENERAL ADVANTAGE THWART THE RULE OF LAW IN THE ADMINISTRATIVE STATE?
Jim Rossi
With a few exceptions, the Office of the Solicitor General controls all aspects of federal agency litigation before the U.S. Supreme Court, bearing a significant influence on the high court’s legal decisions. For example, in recent high-profile administrative law cases involving the federal government’s regulation of tobacco cigarettes and ozone, the Solicitor General requested that the Supreme Court grant certiorari to review government losses below and possibly reverse opinions by lower courts. By making such requests, the Solicitor General made it highly probable that the Supreme Court would hear each case. Once the Court granted certiorari, the probability of a government victory in each case was also high.
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