A Majority of a Third of a Majority Running EPA

A cover story by Margaret Kriz at the National Journal asks "Where is the EPA?"

At a time when the nation's top environmental regulators face increasingly complex pollution problems, [the] administration's strained, pro-industry interpretations of environmental laws have repeatedly been laughed out of court, and the White House is widely perceived to be running roughshod over agency scientists and lawyers.

Environmental law expert Dan Esty states that the EPA is now "off to the extreme end of the right-wing perspective on the environment, reflecting not even a consensus within the Republican Party but the views of some who are particularly hostile to the agency's historic mission." Is Esty being fair here? A recent analysis of party politics by Michael Tomasky suggests that as little as a majority of a third of the party in power in the executive branch may effectively control important policy.

Consider Tomasky's analysis of the Republican coalition:

[T]he party is still in the hands of three main interests: neoconservatives; theo-conservatives, i.e., the groups of the religious right; and radical anti-taxers, clustered around such organizations as the Club for Growth and Grover Norquist's Americans for Tax Reform. Each of these groups dominates party policy in its area of interest—the neocons in foreign policy, the theocons in social policy, and the anti-taxers on fiscal and regulatory issues.

If this is indeed the arrangement, we can easily imagine policy at the EPA being made on the basis of views held by less than 1/12 of the population. This is one reason why the legitimacy of the administrative state rests not only on political "accountability moments," but on scientific expertise and legal regularity. To the extent these latter two ideals are abandoned, there is little point to giving the executive the expansive powers it's grown accustomed to.

Photo Credit: Pfala.

Posted by Frank Pasquale at 09:08 PM | Comments (3) | TrackBack

The Pendulum Swings

Sometimes an editorialist does a particularly good job explaining a wide range of stories. Our administrative law archives over the past couple years have become nearly jeremiadic in tone. Though her column was provoked by problems at FAA, Ruth Marcus articulates the common thread tying many of the posts together:

Turns out, the FAA "did not ensure that its inspectors carried out critical safety inspections," and . . . far from being unique to Southwest, these lapses were "symptomatic of much deeper problems with FAA's oversight." The lapses are symptomatic . . . of much deeper problems across the government. These are not outbreaks of sheer, "heck of a job" incompetence. There is some of that, certainly, but this administration's allergy to government intervention and affection for the private sector have contributed to a spate of regulatory failures, from lead in imported toys to dangerous prescription drugs to subprime mortgages.

The course of these events traces a depressingly familiar arc: paeans to the free market followed by disaster followed by grudging acceptance of regulation. Just a year ago, Treasury Undersecretary Robert Steel proclaimed that new regulation of financial markets was unnecessary because "sophisticated financial firms have both the direct financial incentives and expertise to provide for effective market discipline." Right. Just ask Bear Stearns.

A few matters appear to merit consideration at the highest levels, but apparently not the nuts and bolts of flight, food, or financial safety. One more intensification of the risk society.

Posted by Frank Pasquale at 07:08 PM | Comments (2) | TrackBack

Guantanamo on 60 Minutes

Reviewing recent books on the U.S. shadow prison system at Guantanamo Bay, Raymond Bonner concludes:

There are still hundreds of prisoners held without charge at Guantánamo, and it will in all likelihood be left to the new administration to deal with them. Until it does so, the United States will maintain its reputation as a country that has flouted the basic principles of justice and set a deplorable example for the world.

A new 60 Minutes story details one detainee's claims about his treatment:

"They used to beat me when my head is underwater. They beat me into my stomach and everything," he says.

Kurnaz says the Americans used a device to shock him with electricity that made his body go numb. And he says he was hoisted up on chains suspended by his arms from the ceiling of an aircraft hangar for five days.

"Every five or six hours they came and pulled me back down. And the doctor came to watch if I can still survive [or] not. He looked into my eyes. He checked my heart. And when he said okay, then they pulled me back up," Kurnaz says.

"The point of the doctor's visit was not to treat you. It was to see if you could take another six hours hanging from the ceiling?" Pelley asks. "Right," Kurnaz says.

My Seton Hall colleague Baher Azmy represented Kurnaz; you can watch him on the 60 Minutes clip here starting at 8:50 in.

And here's a transcript:

[Azmy] dug into the case and found that the military seemed to have invented some of the charges. Military prosecutors said one of Kurnaz’s friends was a suicide bomber, but the friend turned up alive and well in Germany.

"How could they have gotten that so wrong? I mean, you're either a suicide bomber or you're not. There's no in between," Pelley remarks.

"This goes to the utter preposterousness of the government’s legal process that they established in Guantanamo, this tribunal system that was supposed to differentiate from enemy combatant and civilian. So in order to justify that he was an enemy combatant, they simply made up an allegation about someone he was associated with," Azmy says.

But far worse than the false charges was the secret government file that Azmy uncovered.

Six months after Kurnaz reached Guantanamo, U.S. military intelligence had written, "criminal investigation task force has no definite link [or] evidence of detainee having an association with al Qaeda or making any specific threat toward the U.S."

At the same time, German intelligence agents wrote their government, saying, "USA considers Murat Kurnaz’s innocence to be proven. He is to be released in approximately six to eight weeks."

But Azmy says Kurnaz was kept at Guantanamo Bay for three and a half years after this memo was written in 2002.

They kept him, Kurnaz says, by inventing new charges. In a makeshift courthouse, Kurnaz claims that a military judge charged that Kurnaz had been picked up near Osama bin Laden's hideout in Afghanistan while fighting for the Taliban. Ironic, since it was the U.S. that flew him to Afghanistan to begin with.

"Have you ever in your legal career run across anything like this?" Pelley asks Baher Azmy.

"In my legal career, no," Azmy says. "But in Guantanamo, no detainee has ever been able to genuinely present evidence before a neutral judge. And so as absurd as Murat Kurnaz's case is, I assure you there are many, many dozens just as tenuous."

And a U.S. federal judge agreed. She ruled the Guantanamo military tribunals violated the prisoners' right to a defense, and she singled out Kurnaz's case as an example.

Though Kurnaz's book "An Innocent Man in Guantanamo: Five Years of My Life" details his story, the Administration "still considers him to be an unlawful enemy combatant." Denying the accused any semblance of due process makes it quite easy to stick to one's guns. Perhaps the most depressing aspect of Kurnaz's story is that it was a German diplomatic intervention--by Chancellor Angela Merkel--that ultimately freed him. Nothing in the American legal system appears capable of stopping the executive branch from holding someone a prisoner without evidence for years.

Posted by Frank Pasquale at 09:05 AM | Comments (0) | TrackBack

Commons-Produced Safety Commission?

Rick Perlstein has recently described the "Third Worlding of America's food safety system." Consumer product safety is not faring much better, and we're now reaping the consequences of laissez-faire. Though at least the Senate has has tried to respond to these developments, other alternatives are also being explored. The massive meat recall suggests one new approach: a citizen-media alliance to name and shame the worst threats to public safety.

The most widespread meat problem in the U.S. was not detected by the Department of Agriculture--and given that agency's mandate to promote meat eating, that's not necessarily surprising. Rather, it was the Humane Society that discovered the processing of "downer cows" and publicized it:

Interviewer: The Humane Society of The United States doesn't necessarily have a dog in the food supply protection fight, but nonetheless, that is the other aspect of this story which made it so take off, the threat to not just consumers but to child consumers because of where this meat was headed.

President of US Humane Society: Without question. [The company involved] was the number two supplier to the National School Lunch Program. I think that one of the factors here is the relevance of this story to our daily lives. Most Americans eat meat. They want to know that the product is not adulterated and they want to believe that the animals are not abused during the production, transport or slaughter process.

The story reminded me a bit of Upton Sinclair's The Jungle, which "aimed for the public's heart and hit it in the stomach."

Can a peer or commons-produced consumer safety system work? I have my doubts. As the Humane Society president puts it, for most stories in his field, troubing behavior "goes on every day and the media pay attention to it episodically." In other words, if Britney went to rehab the day of the meat recall story, it could easily have been bumped off the front page and barely anyone would have heard of it. And can any reader recall the name of the company named and shamed? (Answer beneath the fold.)

We may dream that self-organizing swarms of fact-finders will uncover wrongdoing, but they're scarcely a deterrent when their effect is so erratic. The answer here lies less in bottom-up, crowdsourced exposes than in top-down mandates that level the competitive playing field. In our market-driven economy, it must not merely be possibly shameful to produce adulterated or dangerous products, but reliably unprofitable.

Exposed company: Hallmark/Westland Meat Company.

Posted by Frank Pasquale at 09:57 AM | Comments (1) | TrackBack

The Skidmore Conundrum: Admin Law Wrapped Inside Employment Discrim Law

I'm going Pasquale on ya (the guy is amazingly blog-prolific) and doing two posts in a row today.

Yesterday, the U.S. Supreme Court handed down its opinion in the case of Federal Express v. Holowecki, which decided the standard for what constitutes an administrative charge of discrimination under the Age Discrimination in Employment Act (ADEA). The particulars of the holding can be found here, but I wanted to focus on the non-employment discrimination law parts of the case. In particular, the administrative law discussion in Holowecki.

Not teaching Admin Law, but teaching classes like Employment Discrimination and Labor Law, in which admin law plays a large role, I've been vaguely keeping track of the debate about Chevron deference vs. Skidmore deference, and questions about what Skidmore deference exactly is.

In Holowecki, the Court wrote thusly on the deference the Equal Employment Opportunity Commission's interpretation of its own regulations are due:

In our view the agency’s policy statements, embodied in its compliance manual and internal directives, interpret not only the regulations but also the statute itself. Assuming these interpretive statements are not entitled to full Chevron deference, they do reflect “ ‘a body of experience and informed judgment to which courts and litigants may properly resort for guidance.’ ” Bragdon v. Abbott, 524 U. S. 624, 642 (1998) (quoting Skidmore v. Swift & Co., 323 U. S. 134 (1944)). As such, they are entitled to a “measure of respect” under the less deferential Skidmore standard. Alaska Dept. of Environmental Conservation v. EPA, 540 U. S. 461, 487, 488 (2004); United States v. Mead Corp., 533 U. S. 218, 227–239 (2001). Under Skidmore, we consider whether the agency has applied its position with consistency. Mead Corp., supra, at 228; Good Samaritan Hospital v. Shalala, 508 U. S. 402, 417 (1993). Here, the relevant interpretive statement, embodied in the compliance manual and memoranda, has been binding on EEOC staff for at least five years. See Thornton Memo, supra. True, as the Government concedes, the agency’s implementation of this policy has been uneven. See Brief for United States as Amicus Curiae 25. In the very case before us the EEOC’s Tampa field office did not treat respondent’s filing as a charge, as the Government now maintains it should have done. And, as a result, respondent filed suit before the agency could initiate a conciliation process with the employer.

These undoubted deficiencies in the agency’s administration of the statute and its regulatory scheme are not enough, however, to deprive the agency of all judicial deference. Some degree of inconsistent treatment is unavoidable when the agency processes over 175,000 inquiries a year. Id., at 19, n. 10. And although one of the policy memoranda the Government relies upon was circulated after we granted certiorari, the position the document takes is consistent with the EEOC’s previous directives. We see no reason to assume the agency’s position—that a charge is filed when the employee requests some action—was framed for the specific purpose of aiding a party in this litigation. Cf. Bowen v. Georgetown Univ. Hospital, 488 U. S. 204, 212–213 (1988).

So, is the Court breaking new administrative law ground here or this part of the same ol', same ol' for this part of the law? Employment discrimination minds want to know. Ethan "Chicken Man" Lieb, are you out there in cyberland? Kristin Hickman?

Posted by Paul Secunda at 11:50 AM | Comments (2) | TrackBack

Efficacy and Administrative Law, Part II

In an earlier post, I raised the question of whether we might do well to focus greater attention on the role of constitutional and administrative law in promoting the efficacy of regulation, rather than simply its limitation and constraint.

Off-line, Bill Buzbee, my Emory colleague and a scholar of administrative and environmental law, questioned whether I was understating the attention to efficacy in the administrative law literature, prompting me to try out a bit of (extremely) casual empiricism. For the very limited insight it offers, my results:

My search for (“administrative law” /5 limit!) in Westlaw’s Journals and Law Reviews (JLR) database, to begin, yielded 437 hits.

My search for (“administrative law” /5 (efficac! effective!)) in JLR, by contrast, yielded 129.

Look out, Hoffman, I’m a number cruncher now!

Posted by Robert Ahdieh at 07:29 AM | Comments (1) | TrackBack

Constraint vs. Efficacy in the Study of State Action

In their broadest strokes, my scholarly interests revolve around questions of regulatory design - inquiries into the institutional forms that law and regulation variously take, and should take. Dynamics of coordination have been particularly salient for me, underpinning a potential role for non-coercive mechanisms of state action I term "regulatory cues," as well as cross-jurisdictional regulatory interactions I term "intersystemic governance."

In exploring these patterns, my work has often intersected with issues traditionally studied in the fields of constitutional and administrative law. Questions of U.S. federalism, the nature of federal jurisdiction, and judicial review have variously reared their heads; the nature of the modern administrative state, meanwhile, is front and center.

My various analyses of regulatory cues, intersystemic governance, and the like have also seemed to diverge from the constitutional and administrative law literatures, however, in a way that has always struck me as significant, but was only recently driven home, in relevant comments and work of others.

My earliest sense of the relevant divergence came some years back, when I was working on my very first article, and read the opening paragraphs of Jody Freeman's The Private Role in Public Governance, 75 N.Y.U. L. Rev. 543, 545-46 (2000). She states (with citations omitted):

Administrative law, a field motivated by the need to legitimize the exercise of governmental authority, must now reckon with private power, or risk irrelevance as a discipline. Since the New Deal explosion of government agencies, administrative law has been defined by the crisis of legitimacy and the problem of agency discretion. Agencies can claim, after all, only a dubious constitutional lineage--the Framers made no explicit provision for them, but instead divided power among the legislative and judicial branches and a unitary executive. The combination of executive, legislative, and adjudicative functions in administrative agencies appears to violate the separation of powers principles embodied in the Constitution. Worse yet, despite their considerable discretionary power to impact individual liberty and property rights, allocate benefits and burdens, and shape virtually every sector of the economy, agencies are not directly accountable to the electorate.

Unsurprisingly, administrative law scholarship has organized itself largely around the need to defend the administrative state against accusations of illegitimacy, principally by emphasizing mechanisms that render agencies indirectly accountable to the electorate, such as legislative and executive oversight and judicial review. Scholars have expended considerable energy in particular on structuring and disciplining the exercise of discretion in order to limit agencies' freedom “to do as they please.” Only a handful of articles in the last sixty years, by contrast, have ventured beyond the traditional preoccupation with agencies and the project of constraint.

Freeman goes on to grapple with the question of the private role in public governance, the insight for which she is perhaps most famous. Beyond this discrete (if quite significant) point, though, I read the latter paragraphs to suggest an even deeper truth. As we have defined the discipline of administrative law (and constitutional law, I would venture to add), its underlying project - its basic motivation - is the constraint of government power (and perhaps executive power, most of all). It is, as Freeman's opening paragraphs emphasize, an analysis in the negative, of how we limit the scope of state action.

If this is correct, then the substantive counterpoint to the traditional conception of administrative law that Freeman outlines in her opening paragraphs is not merely an acknowledgement of the private role in public governance, but rather (1) a descriptive project of analyzing and understanding the true nature of the modern administrative state, and (2) a normative project of evaluating (and perhaps even enhancing) the efficacy of state action.

The first piece is fairly straightforward. We need to devote more of our energies to understanding the functional nature of the modern administrative state. Beyond questions of legitimacy and accountability, an understanding of modern administration requires attention to questions of how present-day regulatory agencies actually operate. Absent attention to such questions, we can reasonably predict - if not already observe - a significant disconnect between scholarly analysis of the administrative state, and the realities of its day-to-day operation.

I am particularly interested, however, in the second question, of the efficacy of state action. Whatever value the descriptive project of understanding the modern administrative state may have, it is this normative project, of its efficacy, that strikes me as the most weighty counterpoint to the traditional emphasis of constitutional and administrative law on constraint. Without disputing the importance of our close attention to the constraint of state action, legal scholars' distinct strengths in the study of institutions would arguably seem to warrant equal attention to studying and enhancing the efficacy of state action.

I think of my own work as broadly directed to this lacuna in our scholarly empahsis. But what has recently brought the issue of our relative inattention to the efficacy of state action to mind, have been a succession of recent references to questions of efficacy, in the work and comments of others:

(1) First, at a recent workshop, Deborah Pearlstein - previously Director of the Law and Security Program at Human Rights First, and now a colleague at Princeton's Program in Law and Public Affairs - reviewed a soon-to-be-completed article, in which she draws on organization theory to evaluate White House demands for the consolidation of emergency decisionmaking power in the executive branch. Is such concentration, she asks, actually more efficacious than the relevant alternatives? And, in any case, what weight should constitutional analysis give to claims that effective decisionmaking requires (or does not require) such concentration?

(2) At a Temple University workshop on Ruling the World: Constitutionalism, International Law and Global Governance, organized by Jeff Dunoff and Joel Trachtman, meanwhile, comments by Joanne Scott (from what I would characterize as an administrative law vantage) and by Vicki Jackson (from a constitutional law perspective) again raised this question of efficacy. Constitutional law, Vicki emphasized, is not only about limiting power. It must attend to the efficacy of governance as well.

(3) Finally, in his "ticket" to the most recently held, annual Constitutional Law Schmooze, on executive power, David Golove echoed this point. We must, he suggested, "appreciate how law is an essential component in a larger system of political decision-making, a primary purpose of which is to enhance, not impede, the effectiveness of executive action . . ."

Of course, these represent only a handful of relevant data points. In conjunction with other indicators, however, they lead me to wonder whether we may stand at an important juncture, perhaps particularly in our approach to the discipline of administrative law, but in constitutional law as well. Implicitly, of course, the question of efficacy has always been on the table, as the rejoinder to demands for constraint. As suggested by Deb's paper, thus, the asserted efficacy of unconstrained power is the exact argument made against constraint. Increasingly, however, the efficacy of state action may be emerging as a topic deserving the attention of legal scholars, not merely as a footnote to our study of constraint, but as a question in its own right.

Posted by Robert Ahdieh at 09:28 AM | Comments (1) | TrackBack

The New Hall Monitors

The front page of today's Washington Post reports on a recent explosion in the number of corporate "monitorships," noting a sevenfold increase since 2001. In these cases, the article reports, federal prosecutors direct contracts to private parties, who are given responsibility to oversee sometimes radical reconstructions of companies charged with fraud or other wrongdoing. The often hefty bill, of course, goes to the relevant company.

Much of the analysis in the article speaks to potential corruption/favoritism in the appointment of individuals to fill these lucrative positions. The article notes the appointment of "various former prosecutors and SEC officials with ties to President Bush, his father and other Republican luminaries," before focusing on a particular case out of New Jersey. (Which choice I saw, as a perhaps overly defensive temporary resident, to play on pernicious stereotypes of this fair state...)

I was more interested, however, to think about the nature of the institution of "monitors" more generally. What, I wondered, were potential analogies in our schemes of law and governance? Court-appointed special masters immediately came to mind. Naturally, there's some whiff of our sorely missed independent counsels. Perhaps given my international interests, I somehow thought of the U.N. trusteeship system as well, which in turn brought to mind the various uses of private trustees in the U.S. bankruptcy system.

Wtih full appreciation of the significant variation captured by this litany, what might we say generally about the use of monitorships and similar institutions as mechanisms of regulation? All, of course, involve a certain delegation of monitoring, counseling, and even disciplining functions. But what motivates that delegation? What institutional gains do we understand to follow from such delegation? I assume it's not simply a matter of cost-savings or some general notion of relatively greater efficiency of the private sector. The latter isn't out of the question, of course: Taking the case of monitors by way of example, it's clear, at a minimum, that corporate payments for the privilege of being monitored are more easily made to private monitors than they would be to a public servant or even the agency for whom she acts. And perhaps private monitors are somewhat more likely to be fastidious in their monitoring, given their profit motive (though it's not entirely clear how that motive would play itself out in the particular institutional context of corporate monitorships).

But I wonder whether the operative notions of regulatory "efficacy" behind the use of monitors (and analogous institutions) don't also involve some substantive evaluation of the comparative advantages of public versus private institutions, in varied regulatory settings. The Post thus cites "a shift from lodging criminal indictments against businesses for fear they will collapse and cost employees their jobs. Instead, the government has taken a different path: forcing companies to submit to outside oversight at their own expense as a condition of settling fraud and corruption cases."

Perhaps, this might be understood to suggest, there's some notion of comparative institutional efficacy at work. While public regulators may be quite effective at penalizing behavior, perhaps they are less effective at changing it? To similar effect, perhaps public institutions are good at defining relevant boundaries, but less effective at more nuanced, day-to-day classifications of relevant behavior? Assuming public institutions enjoy a comparative advantage at least at some things, though, greater attention to questions of relative regulatory efficacy would seem to be in order.

Beyond the fascinating question of what institutions such as monitors imply for our understandings of regulatory design, a distinct (and no less fascinating) issue concerns the contracts by which the relevant relationships are established. Assuming a single contract, who are the parties in privity and who is the third-party beneficiary of the contract? At what level of detail are the contracts drafted? And what, perhaps more oddly, what might be the remedies for breach?

Posted by Robert Ahdieh at 10:58 AM | Comments (0) | TrackBack

"Don't Regulate Me or I'll Capture You!"

That's the headline of Brett Frischmann's insightful post at Madisonian. Frischmann notes that all-too-frequently in public debate, "the 'risk of capture' argument leads people to conclude that government should simply not act or regulate, and should instead ignore whatever problem or market failure that would otherwise justify intervention." That's one reason why I've said that the "price" of a capture argument should be the concession that much more public financing of elections is necessary. That may raise Lindblom's "circularity" problem at present, but dynamically it appears to be the only way to avoid capture in the long run.

Frischmann also congratulates Larry Lessig on his advocacy for reform of the political process, and I'm glad he's addressing the larger political forces behind the fine-grained legal issues most law profs study. He may well get us closer to a more fair and open political process. But in the meantime, here's an interesting story on the nature of political change possible in the current political environment:

Phillip Morris . . . threw an enormous multimillion-dollar party for Republicans last month because they wanted the Family Smoking Bill passed, which would force tobacco companies to lower nicotine levels. Phillip Morris, in opposition of the other tobacco companies, actually wants this legislation because they dominate the low-nicotine cigarette market.

Unfortunately, the big tobacco interest in trade policy is not quite as benign.

Posted by Frank Pasquale at 11:35 AM | Comments (2) | TrackBack

Why the FEC Deadlock?

The WaPo warns that the FEC is about to "shut down." Though "375 auditors, lawyers and investigators at the FEC will continue to process work already before them, a variety of matters that fall to the commissioners will be placed on hold indefinitely" because of gridlock over President Bush's effort to appoint Hans Von Spakofsky to a six year term on the commission. Here's Dahlia Lithwick on Von Spakofsky:

Von Spakovsky's Senate confirmation hearing last June was noteworthy for many oddities, not the least of which was a letter sent to the rules committee by six former career professionals in the voting rights section of the Justice Department; folks who had worked under both Republican and Democratic administrations for a period that spanned 36 years. The letter urged the committee to reject von Spakovsky on the grounds that while at DoJ, he was one of the architects of a transformation in the voting rights section from its "historic mission to enforce the nation's civil rights laws without regard to politics, to pursuing an agenda which placed the highest priority on the partisan political goals of the political appointees who supervised the Section." The authors named him as the "point person for undermining the Civil Rights Division's mandate to protect voting rights."

The Lithwick article is worth reading in full, as is the context provided by election law scholar Richard Hasen in Slate stories here and here.

My question is: isn't there some less controversial nominee than Von Spakofsky? Washington must have a good number of Republican election lawyers who share the president's priorities and would prove excellent leaders of the Commission.

Meanwhile, the gridlock could imperil the bid of at least one presidential candidate:

When it comes to federal matching funds, Democrat John Edwards has the most to lose. The FEC certified the payment of the first installment of funds this week, including $8.8 million for Edwards. But matching payments for money he has raised this month, or will receive in subsequent months, may have to wait until the FEC has four members.

There is debate among campaign finance lawyers about whether matching funds could be released without a formal commission vote, one Edwards campaign official said. Because the next installment of funds would not arrive until after the early primaries, strategists inside the Edwards campaign said they are not worried.

Another unworried person is a former FEC head, Bradley Smith, interviewed here.

Posted by Frank Pasquale at 09:27 AM | Comments (0) | TrackBack

Verkuil and Klein on Privatization

Philip Dynia at the Law & Politics Book Review has commented on Paul Verkuil's Outsourcing Sovereignty: Why Privatization of Government Functions Threatens Democracy and What We Can Do about It. Dynia characterizes the book as a sober and penetrating analysis of two disturbing trends:

Who is really in charge of government policy making? Verkuil sets himself the task of demonstrating two points: (1) that important work both significant to and often inherent in the concept of government is being contracted out to the detriment of democratic policy making, and (2) that the trend can (and though he does not say so directly must) be moderated, if not reversed, by changes in the way government operates.

Dynia calls Verkuil's "command of the relevant literature . . . prodigious," and notes his skill at "incorporat[ing] constitutional, statutory, administrative, and contractual sources." Here are some of the conclusions that Dynia draws from Verkuil's book:

[T]he ratio of political appointees to the number of senior career managers must change. Verkuil cites a report by the National Commission on the Public Service (the Volcker Commission) which notes that President Kennedy had 286 political leadership positions to fill, President Clinton 914, and President George W. Bush 3,361. Such a large number of political appointees paralyzes government . . . . Moreover, studies have shown that politically appointed bureau chiefs get systematically lower management grades than bureau chiefs drawn from the civil service . . . . In short, FEMA’s Michael Brown . . . is just the pathetically obvious tip of [an iceberg of] cronies.

I look forward to comparing Verkuil's book to Naomi Klein's The Shock Doctrine, a polemical take on privatization.

Writing in Harper's, Klein makes the following observations about two potential responses to increasing risks in society:

There will be more Katrinas. The bones of our states--so frail and aging--will keep getting buffeted by storms both climatic and political. And as key pieces of the infrastructure are knocked out, there is no guarantee that they will be repaired or rebuilt, at least not as they were before. More likely, they will be left to rot, with the well-off withdrawing into gated communities, their needs met by private suppliers.

Not so long ago, disasters were periods of social leveling, rare moments when atomized communities put divisions aside and pulled together. Today they are moments when we are hurled further apart, when we lurch into a radically segregated future where some of us will fall off the map and others ascend to a parallel privatized state, one equipped with well-paved highways and skyways, safe bridges, boutique charter schools, fast-lane airport terminals, and deluxe subways.

Klein worries that excess privatization creates a self-reinforcing dynamic, whereby firms enriched by one set of contracts attempt to leverage those gains into the future:

When the disaster bubble bursts, firms such as Bechtel, Fluor, and Blackwater will lose much of their primary revenue streams. They will still have all the high-tech equipment bought at taxpayer expense, but they will need to find a new business model, a new way to cover their high costs. The next phase of the disaster-capitalism complex is all too clear: with emergencies on the rise, government no longer able to foot the bill, and citizens stranded by their hollow state, the parallel corporate state will rent back its disaster infrastructure to whoever can afford it, at whatever price the market will bear. For sale will be everything from helicopter rides off rooftops to drinking water to beds in shelters.

This is a troubling vision, and I have tried to suggest ways to temper it even before reading Klein's book (in response to this problem). Though some have criticized Klein for accentuating the negative side of capitalism, those seeking to understand the larger context of long-term shifts in power and influence can do worse than reading a partisan take.

Posted by Frank Pasquale at 03:43 PM | Comments (0) | TrackBack

Deborah Platt Majoras on Political Friendster

Both EPIC and CDD have petitioned for a recusal of FTC Chair Deborah Platt Majoras in the pending Google/Doubleclick merger review. According to Louise Story at the NYT Bits Blog, "Ms. Majoras’s husband, John M. Majoras, works at Jones Day, a law firm representing DoubleClick as the merger is considered. Ms. Majoras also worked at Jones Day." The motion lays out the recusal standards in some detail, and notes specific instances where Platt Majoras recused herself before:

Chairman Majoras recused herself in the FTC’s review of the Proctor & Gamble acquisition of Gillette “because her former law firm, Jones Day, represented P&G before the Commission, and Majoras’ husband remains an active partner with the firm.”

Whenever I teach the Cheney/Scalia duck hunt case, I am reminded of how much networks of influence in DC can overlap. The Matalin/Carville romance reminds us that compartmentalization is an option. One might imagine the Majorases as actors in a regulatory "Adam's Rib," where two married lawyers "use every technique they know to win the case, [as] the courtroom tension carries over into the couple's household."

But this page on Political Friendster suggests the tensions may not run too high. It points out some industry connections made a bit more clear at this source.

Posted by Frank Pasquale at 10:21 PM | Comments (1) | TrackBack

Delaying Aid to the Sick and Suffering

Erik Eckholm's well-reported story on growing delays in Social Security disability cases is yet another sad documentation of our country's flagging concern for the impoverished sick and suffering:

Steadily lengthening delays in the resolution of Social Security disability claims have left hundreds of thousands of people in a kind of purgatory, now waiting as long as three years for a decision. Two-thirds of those who appeal an initial rejection eventually win their cases. But in the meantime, more and more people have lost their homes, declared bankruptcy or even died while awaiting an appeals hearing. . . .

Timely justice in these cases would require more staff to deal with appeals. Instead, continuing budget battles mean that SSA "will probably operate on the basis of continuing resolutions, which will keep agency spending at last year’s level and doom the plan to add judges."

The parsimonious and inaccurate bureaucracy excels at a few things, though. It generates lots of work for those who represent the claimants. And it displays a Kafkaesque willingness to help once it's too late:

In the past, said Walter Patterson, a disability lawyer in Charlotte, N.C., clients who received a foreclosure warning were pushed up the waiting list for quicker hearings. But as the hearing offices have become overwhelmed, he said, they now expedite cases only after seeing an actual eviction notice — usually too late to help.

Like the costly ER interventions that could be avoided if only we provided preventive medical care for the poor, the dilatory aid offered by a torpid SSA should provoke a rethink of bureaucratic justice here. Though the agency is under stress, it should no longer hide behind Mathews v. Eldridge to justify a deeply flawed and unfair system.

Posted by Frank Pasquale at 09:07 PM | Comments (0) | TrackBack

Law Talk: Linda Malone on Litigating Global Warming

In this episode we hear from my colleague Linda Malone, at William & Mary Law School. Linda is an expert on international law, national security law, and the legal issues surrounding global warming. In this episode Linda discusses new litigation strategies that are using domestic courts as a way of enforcing international norms on global warming, as well as forcing action by domestic regulators. Her remarks were originally delivered as the St. George Tucker Lecture at William & Mary, which is given each year to honor the scholarlly accomplishments of a senior member of the law faculty.

You can subscribe to "Law Talk" using iTunes or Feedburner. You can also visit the "Law Talk" page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

Posted by Nate Oman at 09:42 AM | Comments (0) | TrackBack

Why did the US try to Undermine EU Safety Regulation?

As a website relates, "Mark Schapiro's new book Exposed: The Toxic Chemistry of Everyday Products investigates how corporations intent on thwarting stricter environmental and health guidelines here in the U.S. are forced to meet new demands by the European Union." An excerpt from the book compares the U.S.'s oft-toothless Toxic Substances Control Act to the EU's scheme for Registration, Evaluation and Authorisation of Chemicals (REACH). Schapiro notes that "REACH amounts to a revolution in how chemicals are managed, and in how production decisions around the world will be made from now on."

As REACH was being crafted, the U.S. decided to intervene decisively:

[A]s REACH was being debated in the European Parliament from 2003 to 2006, the U.S. government and the nation's industries teamed up to undertake an unprecedented international lobbying effort to kill or radically weaken the proposal. The assault came from an assortment of government and industry offices.

A memo that circulated at the State Department's Bureau of European and Eurasian Affairs denounced REACH as too "costly, burdensome, and complex" for industry to follow. . . [A] Commerce Department brief warned, "hundreds of thousands of Americans could be thrown out of their jobs." U.S. Trade Representative Robert Zoellick submitted a protest to the World Trade Organization asserting that REACH amounted to a "non-tariff" barrier to foreign exporters.

Though REACH promises to become a world standard, the U.S. may soon see itself in the position that Larry Summers recommended for LDC's: "our nation's steady retreat from environmental leadership means it may soon become a dumping ground for chemicals deemed too hazardous by more progressive countries." Schapiro suggests that the bottom line will be an relative increase in European power and quality of life: "American consumers are more at risk than their European counterparts[;] the European Union is . . . gaining the upper hand in regulating the behavior of multinational corporations; and [the EU] is thus amassing more economic power."

Posted by Frank Pasquale at 12:05 PM | Comments (0) | TrackBack

Administering Family Values

Following some excellent reporting on the failures of the CPSC, the NYT gives a big picture forecast of rapid rulemaking in the remainder of the Bush administration:

Hoping to lock in policies backed by a pro-business administration . . . [b]usinesses are lobbying the Bush administration to roll back rules that let employees take time off for family needs and medical problems.

***

The National Association of Manufacturers [NAM] said the law had been widely abused and had caused “a staggering loss of work hours” as employees took unscheduled, intermittent time off for health conditions that could not be verified. The use of such leave time tends to rise sharply before holiday weekends, on the day after Super Bowl Sunday and on the first day of the local hunting season, employers said.

The NAM should watch out--they might provoke a hunter-FMLA alliance as durable as the hunter-environmentalist one. They could also generate more lawsuits in the future by putting complex limits on FMLA leave.

But I'm sure NAM has its eye on not just legal but cultural change. Perhaps the endgame is to force more and more workers to be like this one, quoted in Jill Andresky Fraser's White Collar Sweatshop (p. 23):

[A worker from Intel said] "If you make the choice to have a home life, you will be ranked and rated at the bottom. I was willing to work the endless hours, come in on weekends, travel to the ends of the earth. I had no hobbies, no outside interests. If I wasn't involved in the company, I wasn't anything."

It will be interesting to see how advocates of "heroic conservatism" respond to this push to limit the FMLA. In a perceptive editorial, former George W. Bush speechwriter Michael Gerson makes the following observation on the future of the Republican party:

The two intellectually vital movements within the Republican Party today are libertarianism and Roman Catholic social thought . . . . The difference between these visions is considerable. Various forms of libertarianism and anti-government conservatism share a belief that justice is defined by the imposition of impartial rules -- free markets and the rule of law. . . . But Catholic social thought takes a large step beyond that view [by asserting] that the justice of society is measured by its treatment of the helpless and poor.

And also by its treatment of those who care for dependents.

Posted by Frank Pasquale at 12:03 PM | Comments (0) | TrackBack

Excesses of Eurocracy?

Are the Eurocrats going too far? Here's part of a story on some excesses overseas:

[M]any European cities and regions, at Brussels' behest, are now developing so-called noise maps. To produce the maps, precise noise readings must be taken on every street, whether in downtown areas, in industrial zones, along railway lines or in expensive and leafy residential neighborhoods.

"We are drowning in a sea of data," complains Munich Mayor Christian Ude. And in the end, no matter how costly the measuring process is, the results reveal what everyone has known all along: that it's louder on busy, high-traffic streets than in exclusive, villa-filled residential neighborhoods with maximum speed limits of 30 kilometers per hour.

On the other hand, the more you read about the toxic chemistry of everyday products in the U.S., the more you become willing to accept a burgeoning Brussels.

Posted by Frank Pasquale at 10:15 AM | Comments (1) | TrackBack

The Regulatory Beat

Back in 2002 the Columbia Journalism Review published a piece on "Invisible Agencies," which focused on the rarity of prominent reporting on administrative law decisionmaking. It was a superb piece of meta-journalism, explaining in detail the blinders of the MSM:

Reporting on the regulatory beat, of course, is hard. It requires a reporter to know science, law, administrative procedure, and politics. Journalists must understand the industry in question and the subtleties of regulation - what's proposed, what the regulated industries prefer, and how the public will be affected. Learning all this takes time. Where once reporters like George Anthan, who covered food safety regulations for the Des Moines Register, could spend weeks plowing through stacks of inspection records at the Department of Agriculture, reporters now tend to want and need something quick and dirty.

Maybe that explains why some of the best reporting on the regulatory beat is done by trade-press reporters, whose job it is to accurately report the nuances of regulation for the regulated industries that have profits riding on the agency decisions. For example, Allison Beers, who recently left her post as managing editor of Food Chemical News, became an expert on the workings of the Department of Agriculture when she was covering food safety regulation, and her stories stand out.

Fortunately, a couple of recent stories break the trend of administrative obscurity. I'll post on them in a bit.

Posted by Frank Pasquale at 09:32 PM | Comments (0) | TrackBack

Unexplained Departure from Which Precedent?

Anyone teaching administrative law has to grapple with famous cases involving the National Labor Relations Board. The Board has a long history of sharp political shifts that frustrate appellate courts and litigants alike. The NLRB does virtually all its work via adjudication, which provides it ample room to contradict itself if it can "explain departures from precedent." Today's Harold Meyerson editorial National Labor Ruination Board provides a limit case of Board inconsistency:

On Sept. 29 -- a date that will live in the Double Standard Hall of Fame -- the NLRB issued two rulings, the first (Dana Corp./Metaldyne) dealing with "card check." This is the process by which an employer can recognize a union when a majority of employees sign cards or petitions affiliating themselves with that union, bypassing the board election process, which an anti-union employer can drag out for years. The board ruled that once a union was certified through card check, the employer must post a notice telling employees that if 30 percent of them sign a petition saying they don't want a union, the 50 percent-plus-one of them that do are overruled and a board election must be held. The Bush appointees argued that card-check isn't a good measure of worker sentiment, since those employees who sign cards and petitions may be susceptible to "group pressure."

On the same day, however, in a case (Wurtland Nursing) involving an employer's withdrawal of recognition from the union in its workplace, the board ruled that if a majority of workers signed cards or petitions asking for a vote to remove the union, the employer could decertify the union then and there without even holding that vote. Signed petitions from workers, in other words, are suspect when the workers want a union and proof positive when they don't.

The contradiction raises fascinating legal questions. Which decision came down first? And must the latter case explain its contradiction of the principles inherent in the former? What if the Board adopts a general presumption that workers can be intimidated into forming unions but cannot be intimidated not to join a union? Can an agency evade a responsibility to reconcile two cases by releasing them simultaneously--i.e., neither is precedent for the other? Perhaps something like the Uniform Simultaneous Death Act needs to be adopted for wily agencies that release contradictory opinions simultaneously.

There should be some appellate scrutiny of these decisions, even if the Board intransigently adopts a policy of nonacquiescence in response.

Image: Seal of Knights of Labor.

Posted by Frank Pasquale at 04:51 PM | Comments (0) | TrackBack

Predatory Lending: Meet Jonathan Swift

At the new website of the Predatory Lending Association, aspiring lenders can find concentrations of "working poor" customers in their neighborhood, calculate effectively usurious loans, not blacklist crusaders against payday lending, including Liz Warren, and learn all the arguments that goo-goos will make against high-interest borrowing. One Q&A in particular should be familiar to contracts professors (or maybe just those, like me, who use Randy Barnett's Perspectives book):

Myth: Payday lending is comparable to selling yourself into slavery.

Reality: Although there is a market need for slavery, people do not choose to sell themselves into slavery. Free choice is the difference between payday lending and slavery.

(There is even a neat chart to make the connection more clear.) On the discussion boards, you can share your thoughts with other predatory lenders. Sure, it all seems a little too cute, but it's worth checking out anyway.

Posted by Dave Hoffman at 04:32 PM | Comments (2) | TrackBack

Captured CPSC, Road Show Edition

The last time I blogged about Nancy Nord, head of the Consumer Product Safety Commission, I thought it would be the last. Certainly anyone caught in the middle of escalating product recalls and public outcry over toy safety would be responsive to efforts to improve the CPSC's budget and staffing. Consider the following report:

Government statistics show that imports have increased by 338 percent since 1974, the year the Consumer Product Safety Commission was created. Yet the budget for that agency today is less than half what is was in that year. In effect, we have been disarming our ability to protect ourselves, even as the need to do so has been soaring.

But I was wrong. Nord has instead told Congress not to give the CPSC more funding and enforcement authority. The Washington Post now suggests some reasons why: she and "her predecessor have taken dozens of trips at the expense of the toy, appliance and children's furniture industries and others they regulate." Hilton Head, Barcelona, Orlando--ahh, the difficult life of the regulator:

In February, for example, Nord accepted more than $2,000 in travel and accommodations from the Defense Research Institute to attend its meeting in New Orleans on "product litigation trends," according to her report. The institute is made up of more than 20,000 corporate defense lawyers. In 2004, [her predecessor] Stratton attended the group's meeting in Barcelona, at a cost to the group of $915 for his hotel room.

The guiding "philosophy" behind the current CPSC appears to be a belief in self-regulation: companies themselves should take primary responsibility for safety. My question is whether, after a case like MVMA v. State Farm, an agency can use a political commitment to libertarianism to trump its extant legal and scientific obligations to protect the public. For example, what if the CPSC just decided that any penalty of, say, more than $100 for death-causing injuries would ultimately be counterproductive because it would discourage reporting? Should courts defer to such "agency expertise"? I'd always hoped such questions would remain mere bizarre hypotheticals, but we appear to be in a world where their relevance increases by the day.

Posted by Frank Pasquale at 07:32 AM | Comments (7) | TrackBack

Toobin's The Nine: Lost Illusions

I thoroughly enjoyed my speed-read of Jeffrey Toobin's The Nine. Few books wrap so many deliciously gossipy details about the justices' life and work around one fundamental insight, which I'll relate upfront:

[Chief Justice Roberts has said] "Judges are like umpires. Umpires don't make the rules; they apply them." [But] Supreme Court justices are nothing at all like baseball umpires. . . . When it comes to the core of the court's work, determining the contemporary meaning of the constitution, it is ideology, not craft or skill, that controls the outcome of the cases. As Richard A. Posner. . . has written, "It is rarely possible to say with a straight face of a Supreme Court decision that it was decided correctly or incorrectly. . . . [They] can be decided only on the basis of a political judgment. . . . ". [W]hen it comes to the incendiary political issues that end up in the Supreme Court, what matters is not the quality of the arguments but the identity of the justices.

Toobin shows how the justices' stands are deeply rooted in their biographies, ideologies, and personalities. For example, Thomas loathes Yale (he placed a "Yale Sucks" bumper sticker "on the mantel of his chambers for some time") and loves Red State NASCAR culture. Breyer's cosmopolitan views reflect bien pensant Cambridge (Mass.) and Oxford (England). It would take a minor miracle to get these two men to see affirmative action, campaign finance regulation, or abortion in the same way. And frankly, their divergent worldviews will often lead to irreconcilable conflicts on statutory interpretation as well.

Toobin's book accelerates the classic dynamics of celebrity: it feeds public interest in the justices' quirks and peccadilloes, then leaves us wondering: why are these people so powerful, anyway? As Britney wilted under constant media scrutiny, so too do the justices appear all-too-human under the glare of Toobin's meticulous reporting. Toobin claims that the last five justices appointed have "turned out precisely as might have been expected by" their presidential sponsors. He gives the impression that they mechanically advance the interests of the political machines that elevated them.

So where does this leave lawyers? Perhaps a bit more comfortable with the administrative state, which can be more frankly (and accountably) political. Some agencies may also find their legal "freedom of maneuver" more constrained by science and expertise than the Supreme Court would. As Cass Sunstein has stated, "the law's meaning is not a 'brooding omnipresence in the sky'--and . . . the executive, with its comparative expertise and accountability, is in the best position to make the judgments of policy and principle on which resolution of statutory ambiguities often depends." Until a book like The Five (about, say, the Federal Communications Commission) shatters our faith in their capacity to escape capture and promote the public good.

Posted by Frank Pasquale at 12:53 AM | Comments (0) | TrackBack

The Road to Totalitarianism?

Lots of claims are being made about John Edwards' apparent endorsement of "mandatory preventive care" in a speech. First, let's look at his exact language:

[Edwards said his universal health care proposal] "requires that everybody be covered. It requires that everybody get preventive care. . . If you are going to be in the system, you can't choose not to go to the doctor for 20 years. You have to go in and be checked and make sure that you are OK."

Now, if I understand the Edwards health plan correctly, that "If you are going to be in the system" qualifier is very important. Note this cornerstone of his proposal:

Health Care Markets will offer a choice between private insurers and a public insurance plan modeled after Medicare, but separate and apart from it. Families and individuals will choose the plan that works best for them. This American solution will reward the sector that offers the best care at the best price.

The key question here is: what did Edwards mean by "in the system"? If he meant "part of the backstop 'Medicare for All' program, I don't see how his policies significantly differ from ones already endorsed by the Bush administration. Moreover, given that they are designed to extend health care to the now uninsured, wouldn't the uninsured be better off with a new option for care--even if such strings were attached?

Edwards' plan for "Health Care Markets" mirrors something the critics of universal coverage never seem to mention--that other systems that do offer universal coverage also routinely let their citizens supplement the state-run program with private insurance. Consider the case of France, detailed in Paul Dutton's Differential Diagnoses: A Comparative History of Health Care Problems and Solutions in the United States and France:

The French share Americans' distaste for restrictions on patient choice and they insist on autonomous private practitioners rather than a British-style national health service, which the French dismiss as "socialized medicine." . . . French legislators also overcame insurance industry resistance by permitting the nation's already existing insurers to administer its new healthcare funds. Private health insurers are also central to the system as supplemental insurers who cover patient expenses that are not paid for by Sécurité Sociale. Indeed, nearly 90 percent of the French population possesses such coverage, making France home to a booming private health insurance market.

Let's just say this doesn't sound like totalitarianism to me.

Now, if Edwards really meant mandatory preventive care for everyone, sure, that is a big change and worth debating. But anyone who's panicking about it might also want to worry about this bottom-line demand from the former Senator: "Does your plan cover every single American?"

Posted by Frank Pasquale at 10:20 PM | Comments (0) | TrackBack

Captured Product Safety Commission

About a year ago I heard a radio story about a new technology called SawStop, which is designed to prevent table saw injuries. Every year table saws cause "over 60,000 injuries, over 3,000 amputations, and $2 billion in injury-related costs." SawStop petitioned the Consumer Products Safety Commission to issue new rules to encourage manufacturers to increase the safety of their saws. After years of lobbying, SawStop appeared to get the CPSC to agree...but then its chairman resigned:

[T]he CPSC staff recommended the petition be granted. On July 11, the commission voted, 2 to 1, to start the process of making a new rule, a job that can take years. [Sawstop's founder and attorney] said they felt vindicated, although the rejoicing ended four days later when Stratton resigned from the agency. One of the remaining commissioners, Nancy A. Nord[pictured at right], wanted to defer action on the petition and instead look at voluntary efforts being made by the industry. . . . Julie Vallese , CPSC spokeswoman, said the saw-safety standard idea isn't dead but that the agency's "decision-making procedures" don't allow the rulemaking to advance with what amounts to a deadlocked commission.

I was surprised by that story, but apparently gridlock and apathy are par for the course at the agency. For example, it has protected ATV manufacturers from regulation, despite the fact that in 2004 "44,000 children riding all terrain vehicles were injured . . . nearly 150 of them fatally." Here's one insider's account of that decision:

[At a hearing on the matter,] John Gibson Mullan, the agency’s director of compliance and a former lawyer for the A.T.V. industry . . . [said that the] current system of warning labels and other voluntary safety standards was working, he said. “We would need to be very careful about making any changes.” Robin L. Ingle, then the agency’s hazard statistician and A.T.V. injury expert,