Category: Administrative Law

Flying the Stratified Skies

edna.jpgTravel has always served to remind us of the divisions our “classless society” tries so hard to downplay. Sam Walton may have driven an old truck, but you’d be hard-pressed to find most top executives or trust-funders flying in less-than-first-class digs. As the song in Chitty-Chitty Bang-Bang put it,

O the posh posh traveling life, the traveling life for me

Pardon the dust of the upper crust – fetch us a cup of tea

Port out, starboard home, posh with a capital P. . .

Admittedly, for those of us crushed into coach, there was always a happy flipside to the narrative: the profligates up front were paying so much more for their seats, effectively subsidizing the rest of us.

But that subsidy effect has been on the wane in recent years. And now wealthy fliers have found a new way to effectively assure that the rest of us are subsidizing them:

Corporate jets pay a fraction of the taxes and fees that commercial airliners do. The F.A.A. estimates that private planes, which include both corporate jets and weekend fliers, account for 16 percent of the air traffic control system’s overhead but contribute only 3 percent of the fees earmarked to run the system.

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The Air Transport Association has . . . created a Web-based ad campaign featuring a fictional traveler, Edna, complaining about the fee disparity while the computer screen displays waves of corporate jets filling the skies before and after sporting events like the Kentucky Derby and the Masters golf tournament.

It’s enough to wilt the mint in your julep. As the campy YouTube ad sloganeers, travelers like “wearing big wigs, not subsidizing them!” Edna (pictured above) wonders “Why should the rest of us pay ten times more using the same services?”

Fortunately, the FAA has heard her pain, and is planning on “sharply increasing the fuel tax for private jets and also hitting corporate fliers with extra charges to land at any of the country’s 30 most congested airports.”

Fear of Flying: Where are the Market Solutions?

Anyone who flies knows that the experience has been deteriorating for years. The problem isn’t just a lost glamor; basic necessities are getting jettisoned:

Since late December, we have heard of literally dozens of incidents in which passengers were stuck on parked airplanes, unable to get off for four, six and even 10 hours. Typically, food and water were scarce, and often, the toilets started backing up after a few hours. [One] flight attendant . . . said that when a plane is delayed or stuck for hours on the ground, it is the passengers’ responsibility not to eat or drink, to avoid overtaxing the toilets.

Great advice for diabetics. Anyway, after the JetBlue’s Valentine’s Day disaster, outraged passengers lobbied Capitol Hill for some guarantees of food, water, and reasonable responsiveness to stuck passengers. (They appear to have some chance of succeeding.) The industry and anti-regulation gurus responded that such rules would put too heavy a burden on an struggling industry.

My question is: has market competition for humane passenger conditions begun to emerge? Are airplanes competing on enforceable promises not to, say, expose trans-Atlantic passengers to sewage? Or is this an area where competition is simply unable to emerge, since no one is really going to pick through the (invariably one-sided) contractual terms applicable to a given flight?

I suppose I will be accused of trying to price the poor out of airflight, in order to preserve “Cadillac-level” service for the rich. Perhaps I’m just too risk-averse. But I predict more and more people would rather just stay home than even face a small chance of the types of indignities, delays, and rough treatment now becoming commonplace in the “friendly skies.”

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HIPAA-cracy

This morning, vindication! When a long New York Times investigative piece says exactly what you have been saying for a long time, it feels very good.

So it is with this morning’s thumbsucker [reg/$$ req’d] about the ridiculous overzealousness and misunderstanding of HIPAA by health care professionals. HIPAA is the Clinton-era law that was principally concerned with making health insurance portable, but has become better known for its privacy-protection requirements. (In fact, the statute largely delegated development of all the details of the privacy provisions to the Department of Health and Human Services, which engaged in a lengthy and torturous rulemaking process.) As recounted at length in the Times piece, many employees at hospitals, doctors’ offices, and insurance companies use the statute’s supposed requirements as a shield for bureaucratic inflexibility in releasing information, even to close family members of an incapacitated patient. I have had numerous encounters with just such ill-informed stubbornness myself, and I find it maddening. (You can only imagine some of the arguments I have had with telephone receptionists who blindly invoke HIPAA.)

In addition to the direct trouble it causes for patients and their family, I fear the continued misuse of HIPAA undermines support for all privacy regulation. This is the only direct contact many people will ever have with privacy law in action. Who could blame them if they conclude that legal privacy restrictions are for the birds? Disregard for patient privacy was widespread before HIPAA, and I have no doubt legal regulation was called for. There have been 27,778 complaints under the law. But those harms are less visible to most of us than the new harm of mindless overprotection.

What’s fascinating is that the excessive caution in response to HIPAA comes against a backdrop of extremely low risk of sanctions. Exclusive enforcement power lies with HHS — the law provides no private right of action. And HHS has never imposed any civil or criminal penalty (although there are three criminal cases ongoing at the moment, those situations are extreme outliers). What explains this risk aversion given the vanishingly small risk of any real penalty?

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The Admin Law Game

There’s a new kind of computer gaming being developed, and “fun” isn’t exactly the point:

[Games] created by Bogost’s development studio, Persuasive Games, invite us to be ruthlessly greedy, helplessly incompetent, and breathtakingly rude. The goal of Airport Security, for example, is to relieve infuriated passengers of prohibited items in accordance with continuously changing carry-on rules. In Bacteria Salad, players grow veggies for profit and try to avoid poisoning too many people. And in last year’s Disaffected!, we assume the role of a Kinko’s employee struggling to deliver print orders as lazy coworkers shuffle papers into the wrong stacks.

I wonder if they modeled the airport game on Dan’s action figures? Less bleak scenarios are also in the works.

These innovations remind me of the “game-like” aspects of administrative law: how do you navigate a labyrinthine agency to advance your client’s interests? The “game design” in Bacteria Salad has to include classic modalities in influencing human behavior: markets, common law, regulation, or norms. As Yochai Benkler notes, games themselves are also creating social relations: for the designer, “the interesting questions are, which approach will better foster creative autonomy, and create a more effective social network.”

The recent Washington Post stories on Dick Cheney’s influence on sub-cabinet level appointees also reminded me of “god mode” in games. You may think the rules of a given agency are set–and legally, they may well be. But the political aspect of administrative law means that an executive branch higher-up can get a lot done outside normal channels. Consider the case of Klamath river fish:

Law and science seemed to be on the side of the fish. Then the vice president stepped in. First Cheney looked for a way around the [Engdangered Species Act], aides said. Next he set in motion a process to challenge the science protecting the fish, according to a former Oregon congressman who lobbied for the farmers. Because of Cheney’s intervention, the government reversed itself and let the water flow in time to save the 2002 growing season, declaring that there was no threat to the fish. What followed was the largest fish kill the West had ever seen, with tens of thousands of salmon rotting on the banks of the Klamath River.

The story of admin is often the story of how politics, law, and science collide. The unpredictability of these “rock, scissors, paper” conflicts makes the subject matter all the more game-like.

Abizaid to Taguba: Stop Snitchin’

Law and order types have been upset by the “stop snitchin’” phenomenon in American inner cities for some time. But as Alexandra Napatoff has noted, the “urban criminal entrepreneurs” who claim “that friends don’t snitch on friends” may well be as much a product as an enemy of current law enforcement practices. Sherrilynn Ifill has also insightfully commented on the wider cultural trend to “stop whistleblowin’,” and has suggested some basic protections that need to be in place:

Whistleblowers, whether in urban communities or in the government, are more inclined to speak out if they have assurances of protection, if they feel that their actions will be supported and corroborated by other members of their community, and if they trust the people or organizations with whom they share their confidential information.

Given the following exchange between General Abizaid and General Taguba after the publication of the latter’s report on Abu Ghraib, let’s hope the Army becomes more interested in the issue:

A few weeks after his report became public, Taguba, who was still in Kuwait, was in the back seat of a Mercedes sedan with Abizaid. Abizaid’s driver and his interpreter, who also served as a bodyguard, were in front. Abizaid turned to Taguba and issued a quiet warning: “You and your report will be investigated.”

“I wasn’t angry about what he said but disappointed that he would say that to me,” Taguba said. “I’d been in the Army thirty-two years by then, and it was the first time that I thought I was in the Mafia.”

Seymour Hersh reports the Taguba story here.

Don’t Apply for Asylum in Atlanta

That’s the advice savvy immigration lawyers will probably be giving applicants after the publication of a new analysis of 140,000 immigration decisions. The Atlanta office granted asylum to only 12% of applicants, compared to a national average of 40%. Intracourt disparities were also astonishing:

In one of the starker examples cited, Colombians had an 88 percent chance of winning asylum from one judge in the Miami immigration court and a 5 percent chance from another judge in the same court.

The study reminds me of a fascinating documentary entitled “A Well-Founded Fear,” which looks inside one immigration office and records cases presented to staff there. My main impression of the process (or lack thereof) was that the judges were often tasked with a near-impossible job of figuring out whether a given applicant was “credible” on the basis of a very informal “hearing”–basically, just listening to their story and asking questions designed to provoke inconsistent statements. Only a thick paper file documenting trauma or home country conditions had the potential to deter a snap judgment of “not credible.” The disparity among judges is also quickly in evidence–one appears to be a classic “bleeding heart,” but she is easily outnumbered by others who appear ready to dismiss just about any narrative of persecution as unbelievable.

Will Article III courts intervene to supervise this “agency under stress“? Early indications are grim. Consider this language from a First Circuit opinion in Albathani v. U.S.:

the Board member who denied Albathani’s appeal is recorded as having decided over 50 cases on October 31, 2002, a rate of one every ten minutes over the course of a nine-hour day. . . . We are not willing, however . . . to infer from these numbers alone that the required review is not taking place. . . . [W]orkload management devices . . . . do not, either alone or in combination with caseload statistics, establish that the required review is not taking place.

Which leads me to wonder–would one minute of review be enough? Fifteen seconds? When would such nanoreview cease being a “matter committed to agency discretion,” and threaten our sense of the rule of law?

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Why Watters Matters: An Early Lesson from the First Circuit

Even in a quieter Term, the Supreme Court’s 5-3 decision in Watters v. Wachovia Bank, N.A. would hardly go down as one of the more significant, noteworthy, or even interesting rulings handed down, and that will certainly prove to be the case as the present Term races toward its (increasingly controversial) end. That’s not to say, though, that Watters won’t turn out to have a substantial impact on federal and state commercial regulation in a large class of cases, and we have a First Circuit decision from yesterday as proof of that. [Hat tip to How Appealing.]

First, Watters. I’ve blogged extensively about the issue and the decision before (see, e.g., here, here, and here), but the short of it is that the Office of the Comptroller of the Currency is entitled to preempt state consumer regulation of “national banking activities” even when those activities are conducted by entities other than “national” banks. In Watters itself, the issue was whether the OCC could preempt state regulation of national banks’ operating subsidiaries, and the Court affirmed decisions of the Second, Fourth, Sixth, and Ninth Circuits, all answering that question in the affirmative (although, as I noted at the time, the Court adopted the Ninth Circuit’s Chevron-free analysis, rather than the Chevron-laden views of the other three circuits).

The problem is that by focusing on the activity rather than the actor, the Court endorsed a broad understanding of the OCC’s preemptive authority, and one that could possibly extend to oust state regulation of all kinds of commercial actors, none of whom are actually “national banks,” and none of whom are therefore expressly protected by federal statute. Justice Stevens, in his eloquent dissent, raised the specter of such a possibility, and the First Circuit, yesterday, proved Justice Stevens prophetic. More about the decision below the fold…

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Argument & Authority

One part of the intro to Kennedy & Fisher’s Canon of American Legal Thought really hit me today:

Law students struggle to understand the relationship between “the rules” and the vague arguments that lawyers call “policy.” Should “policy” begin only in the exception—when legal deduction runs out—or should it be a routine part of legal analysis? If the latter, how should lawyers reason about policy? What should go into reasoning about “policy”—how much ethics, how much empiricism, how much economics? Which of the arguments laypeople use count as professionally acceptable arguments of “policy” and which do not? Which mark one as naïve, an outsider to the professional consensus? What is it about policy argument that makes it seem more professional, more analytical, more persuasive, than talking about “mere politics”?

I think I might begin my administrative law class next term with those questions at the forefront. Administrative Law is occasionally derided as a Seinfeld class–a class about nothing–because the precedents seem so malleable and ad hoc. All seems to turn on an increasingly complicated jurisprudence of deference. But the agencies are often getting deference because they are presumed to have a better grasp on “empiricism and economics” than nonspecialist judges.

The problems raised by K&F go beyond law into flelds like economics itself. Consider EconJournalWatch’s recent issue examining the role of math in top-level publications. Sutter & Pejsky ask “Where Would Adam Smith Publish Today?,” and note a “near absence of math-free research in top journals.” A bit from their conclusion:

The emphasis on mathematical modeling and regression analysis imposes a toll on the profession. Adam Smith spent his early years studying literature, history, ethics, political and moral philosophy, and then teaching literature and rhetoric to college students. Today to succeed in the profession he would need to study model building and regression analysis well enough to publish in “good” journals, and he (and the rest of us) would have lost the value added from the studies displaced. The same would apply for many Nobel prize winners who published their work in an economics profession less tied down to model building and regression analysis.

Sutter & Pejsky, along with many other interesting authors in EJW, are arguing for a more pluralistic approach to economic authority. I hope to show my students in Admin the multiple sources of authority for agency decisions…and how that complexity, while occasionally frustrating and obfuscatory, can make the resulting decisions stronger, like a Peirce’s cable.

Don’t Cry for G, Buy Toyota

Today brings word that Toyota has finally displaced GM as the world leader in auto sales. To celebrate this doesn’t come naturally for me; my father was a displaced steel worker who insisted on buying American cars as long as he lived. But a brief review of the corporate record of the two entities leads me to hope the eclipse of GM will warn other companies that they need to reckon with the “Green Imperative.”

It’s often said that when emissions standards were introduced, Toyota hired a 1000 engineers to meet them, and GM hired a 1000 lawyers to fight them. I’m not saying engineers are necessarily more useful than lawyers–think of the yeomen’s labor of those who had to fight GM in court! Their sad plight is chronicled in Keith Bradsher’s High and Mighty: The Dangerous Rise of the SUV. Consider this interaction between GM and the EPA (296):

[To fight recognition of Kyoto Protocol-inspired standards], GM hired a law firm that prepared a 4-inch thick document for the EPA on why the rules were too stringent, laying the groundwork for a legal challenge. But Ford cut the ground out from under GM’s arguments by saying that it had no objection to the new rules….

GM decided not to sue the federal government to block the new rules….[But while] Ford had voluntarily and deeply reduced air pollution from its entire lineup of light trucks[,] GM had not even bothered to match Ford’s example.

…and they certainly haven’t matched the Prius. Rather, GM (and, sad to say, the UAW and some other domestic manufacturers) have furiously lobbied to weaken already lax fuel economy standards.

As Dan Filler might say, sometimes regulation can help the regulated. If GM had the “ecomagination” of a GE, perhaps it would still have the market position it lost today.