Yearly Archives: 2010

The Truth Might Set Your Statutory Interpretation Free

Dec 17, 2010 Richard Murphy1 comment

There is something silly about Supreme Court decisions in which five justices explain that the conventional tools of statutory interpretation—e.g., legislative intent, objective textual meaning, and judicial rules for discerning and applying them—plainly indicate that a statute means A but the other four justices deploy the same tools to explain that the statute plainly means B.  After all, if the relevant meaning were all that clear, wouldn’t all nine of the extraordinarily capable legal minds on the Court come to quick agreement?  And isn’t their disagreement strong evidence that the statutory question has no pre-existing, determinate legal answer?   One might expect that under such circumstances, the rules of reasoned legal discourse would require justices to make remarks like, “Wow.  My dissenting colleagues’ arguments are really very good—they almost persuaded me—and I’m no pushover. But, on balance, I still think it is a better idea to choose interpretation A instead of B.”  Instead, the more usual practice is for both sides to insist that the other is just plain wrong.

In his elegant essay, Professor Foy suggests courts dispense with such nonsense and instead tell the truth.  Suppose, for instance, a judge determines that conventional tools of statutory interpretation do not compel a choice between readings A and B.  The judge happens to think that the world would be a better place were she to choose B.  Under the current rules of the game, the judge should write an opinion that tries to justify choosing B based solely on conventionally acceptable tools—which might include, say, old dictionaries.  This sort of exercise can generate judicial explanations that are strained, arbitrary, or untruthful.  According to Professor Foy, the judge should: (a) instead concede that interpretations A and B both seem pretty darn reasonable as a matter of conventional legal analysis, and then (b) truthfully explain whatever reasons of policy, equity, or justice moved the judge to choose one interpretation over the other.  In short, judges should admit that they must exercise discretion when choosing among reasonable interpretations of ambiguous statutes and then exercise that discretion as prudently and transparently as they can.

I enjoyed Professor Foy’s essay for several intertwined reasons.  First, it is a fun read.  If statutes were written as clearly and lucidly as Professor Foy’s essay, then he would not have had to write it.  The quality of the writing lends it persuasive force in a way that calls to mind that lawyers—and by extension, law professors—are supposed to be good at rhetoric.  My favorite turn of phrase from the essay comes in Professor Foy’s dissection of Chapman v. United States (1991)—the case in which a majority of the Supreme Court relied in part on dictionary definitions to determine that LSD and blotter paper form a “mixture” for sentencing purposes.  As Professor Foy remarked in a fairly devastating riposte, “[a] reasonably intelligent English speaker would not ordinarily use the word ‘mixture’ to describe a necktie stained with soup or a napkin soaked in cod liver oil.” Professor Foy’s essay is wise and wry.

Second, Professor Foy’s essay provides a novel angle for thinking about a very old problem.  It is not, of course, news that statutory interpretation, in the hard cases, includes a discretionary element.  Indeed, recognition of this point is a foundational element of the Chevron doctrine, which in essence instructs courts to affirm an agency’s discretionary choice among reasonable statutory constructions provided the agency gives a reasonable explanation for the choice.  One can understand Professor Foy’s essay as insisting that courts apply the same standards of reasoned decision-making to themselves as they apply to agencies—what is good for the discretionary administrative goose is also good for the discretionary judicial gander.

Best of all, Professor Foy’s essay is thought-provoking.  After reading it, I found myself mulling over, among other things:

• Would it really be better for courts to be more truthful about the discretionary nature of the task of interpreting ambiguous statutes?
• Are courts actually lying about this process even if no one believes them?
• Would greater judicial truthfulness about statutory interpretation tend to exacerbate or mitigate the role of ideology in this process?
• What would be the effect of judicial truth-telling on stare decisis?  Where a judge admits that he or she chose an interpretation based on a personal policy preference, should that choice be entitled to weight in other cases?
• And, last but not least, what exactly do we mean by “discretion,” anyway?

So, there you have it:  Professor Foy’s essay on discretion in judicial statutory construction is wise, wry, novel, and thought-provoking.  You will enjoy reading it.

Jettisoning Chevron

Nov 19, 2010 Linda Jellum1 comment

As one academic, among many, who has made my scholarly reputation based in part on the landmark case of Chevron U.S.A., Inc. v. Nat. Resources Defense Council, 467 U.S. 837 (1984), I noted with some concern Professor Jack Beermann’s latest  work entitled:  End the Failed Chevron Experiment Now:  How Chevron Has Failed and Why it Can and Should be Overruled. Overrule Chevron?  End the experiment? Say it ain’t so! Hadn’t Chevron offered “a wonderful new world … full of promise for administrative-law professors in need of tenure articles….?”  National Cable & Telecommuns. Ass’n v. Brand X Internet Serv., 545 U.S. 967, 1019 (2005) (Scalia, J., dissenting).

I approached his article with some trepidation but also with great interest.  Why would anyone want to overrule Chevron?  Professor Beermann succinctly answers this question in his abstract:  “Chevron has complicated judicial review and, at best, it is uncertain whether it has resulted in increased deference to agency interpretation. In fact, for numerous reasons, Chevron has been a failure on any reasonable measure and should be overruled.”  Intrigued, I forged ahead.

His article begins by identifying a number of reasons why the Chevron doctrine has failed.  Specifically, (1) the Chevron doctrine violates 5 U.S.C. § 706, the statute that generally governs judicial review of administrative decisions and requires that courts review questions of law de novo, (2) the Chevron doctrine was based on faulty presumptions regarding congressional intent to delegate by ambiguity and regarding political accountability, (3) the Chevron doctrine is highly unpredictable, (4) the Chevron doctrine has not lead to increased deference to agency interpretations, (5) the Chevron doctrine is often not cited by the Supreme Court in cases in which it should apply, (6) the Chevron doctrine has increased litigation costs, and (7) the Chevron doctrine encourages agencies and judges to act irresponsibly.  Perhaps most importantly, however, Professor Beermann notes that the Chevron doctrine is simply unclear in application.  First, it is unclear whether Chevron applies:  Professor Cass Sunstein famously labeled the question of whether Chevron applies as Chevron step zero.  Second, it is unclear how Chevron applies; in other words, is step one just a textual analysis or is it a full statutory interpretation analysis and does step two apply differently depending on whether Congress was explicit or implicit when it delegated?  Third, it is unclear why Chevron applies given that the doctrine was contrary to the established distribution of interpretive power among the three branches.  Finally, it is unclear when Chevron applies; in other words, does the doctrine apply to agency policy decisions or just to agency statutory interpretations?

While Chevron initially promised simplicity, it has delivered only chaos.  Indeed, the Justices have developed four variants of Chevron:  (1) the “original directly spoken” variant, (2) the “traditional tools” variant, (3) the “plain meaning” variant, and (4) the “extraordinary cases” variant.  The number and diversity of the variants epitomizes all that is wrong with Chevron; hence, Professor Beermann concludes that the case should be overruled and the doctrine replaced with a more consistent and simple one.

After describing Chevron’s failings, Professor Beermann very briefly explains why overruling Chevron would not violate the Supreme Court’s stare decisis principles.  In short, overruling Chevron would be permissible under Pearson v. Callahan, 129 S. Ct. 808, 811 (2009), in which the Supreme Court explained when overruling a case would be consistent with stare decisis principles.  At bottom, overruling Chevron would not affect settle expectations because the doctrine’s application has been so unsettled.  Additionally, it is a judge-made doctrine that time and experience have proved unworkable.

In the final section of his article, Professor Beermann offers two alternatives: reforming or replacing Chevron.  Both alternatives would be more consistent with the APA’s assignment to the courts to review questions of law de novo and questions of policy under arbitrary review.

Alternative one:  if Chevron were not jettisoned, Professor Beermann begs that it at least be reformed.  Specifically, he argues that the narrow, step one variants be rejected.  Courts should be free to interpret statutory language using all the traditional tools of interpretation.  Such a change would return interpretive power to the judiciary.  Second, he recommends that step two be limited to occasions when Congress explicitly delegated a range of choices to the agency and be expanded to include arbitrary and capricious review.  Supporting this additional step, he says that it is possible for an interpretation to be a reasonable interpretation of the statute, but still be arbitrary and capricious choice.  Third, he suggests that Chevron step zero die a quick and painless (painful?) death.  This step simply complicates the analysis unnecessarily; rather, Chevron should apply universally, whenever Congress specifically delegated interpretive authority to the agency.

Alternative two:  Instead, if Chevron were jettisoned, Professor Beermann recommends returning to pre-Chevron practice.  Under this practice, assuming an agency had the power to make legislative rules, the reviewing court would determine whether the agency had interpreted the statute reasonably by paying close attention to the language of the statute, its purpose, and its history.  In addition, the court would consider the wisdom of the agency’s policy choice under the arbitrary, capricious standard.  Pre-Chevron, judges were the final arbitrators of statutory meaning, while agencies played an advisory role.

Regardless of whether you agree with Professor Beermann’s provocative demand to “End the Failed Chevron Experiment Now,” he has written a persuasive article that identifies and explains the problems with continuing with Chevron in its current form, whatever variant that might be.  He has identified two alternatives, either of which would vastly simplify judicial review of agency interpretations of statutes.  In short, while I expect many law professors might decry the loss of Chevron, this article suggests we would be crying alone.

Regulating Constitutional Law

Oct 29, 2010 Anne Joseph O'Connell1 comment

There is considerable overlap between administrative law and constitutional law. The appointment of particular agency leaders without Senate confirmation, ex parte communication between an agency and interested persons in a rulemaking process, and the type and timing of a hearing used in terminating a government benefit, for example, can raise constitutional issues. These topics generally receive some attention, at least in the academic literature and at times in the courts.

Sophia Lee’s exceptional article, Race, Sex, and Rulemaking: Administrative Constitutionalism and the Workplace, 1960 to the Present, turns our attention from these more conventional explorations of the overlap to “regulatory agencies’ interpretation and implementation of constitutional law,” what Lee terms “administrative constitutionalism.” The article compares the contrasting responses of the Federal Communications Commission and the Federal Power Commission to pressure to use the state action doctrine to enact and enforce employment policies aimed at furthering equal employment by race, sex, and ethnicity, mainly in the 1960s and 1970s. The FCC did implement equal employment rules, largely independent of direct presidential or congressional influence, while the FPC did not.

The article describes how, as Office of Legal Counsel lawyers pushed back against President Kennedy’s executive order barring employment discrimination by federal contractors being grounded in any constitutional obligation, FCC attorneys argued that the agency “‘ha[d] the authority and duty’ to consider whether an applicant had violated the Fifth Amendment” and thus “should refuse to license broadcasters who practiced racial discrimination because licensing such broadcasters ‘would not be in the public interest.’” This “public interest” argument—though constitutional in part—was grounded in FCC statutes. FCC attorneys also made a non-statutory argument, that “the Constitution directly compelled the FCC to deny licenses to racially discriminatory broadcasters” and “that broadcasters were also state actors constitutionally barred from discriminating.”

The story of how these arguments were made when Attorney General Robert F. Kennedy, among others, was warning Congress that they raised “very far-reaching and grave issues” is a fascinating one. Through impressive archival work, Lee concludes that FCC leaders mostly “creatively extended or narrowed court doctrine in the absence of clear, judicially defined rules” but sometimes “in the presence of directly relevant, but unfavorable, Supreme Court precedent, they ignored the unfavorable decisions” or “acquiesced in a[n] [appellate] court’s judgment, but did not embrace the constitutional principle underlying that judgment.”

To be certain, the article will be of interest to legal historians and to scholars interested in the history of the administrative state. Its detailing of the enactment and enforcement of equal employment rules by the FCC from the 1960s to today is remarkable. The article, however, should have broader appeal.

The article suggests some thoughtful takes on broader issues in administrative and constitutional law. Starting on the smaller side of these broader issues, the FCC’s equal employment rulemaking sits in the wider context of agency choices between rulemaking and adjudication in making policy decisions. The article provides an illuminating case study for Elizabeth Magill’s and follow-on work (by Matthew Stephenson and others) on agency choice of form.

In addition, the article displays a range of conflicting agency views about the state action doctrine – from the Department of Justice and General Services Administration (on the executive agency side) to the FCC, National Labor Relations Board, and Equal Employment Opportunity Commission (on the independent agency side), and among a range of independent regulatory commissioners (most notably, between the FCC and FPC). These disparate views raise questions about the role of agency structure, the civil service, and political appointments in administrative constitutionalism. This piece wonderfully demonstrates that an agency is a “they” not an “it” (with apologies to Kenneth Shepsle). There are no simple left-right explanations. Some of the strongest proponents for agency rulemaking on equal employment are Republicans.

Most important, the piece focuses on agency “interpretation and implementation of the Constitution.” We take for granted the role of the courts and even Congress in that task. It is good to think more deeply about how agencies engage in such work and whether agencies should be doing so. As Lee concludes:

This history of administrative constitutionalism raises difficult normative, theoretical, and empirical questions. How representative is this history? Are there legal and theoretical justifications for administrators’ divergent constitutional interpretations? Even if justifiable, are such interpretations desirable? This last question may be the most vexing. Regardless of the pros and cons of administrative constitutionalism, it is probably ineluctable. Our current circumstances—a Court soon to be flush with new appointments, a Congress passing novel and ambitious laws, and a President who has charged regulators with a mandate for change— will likely feed, not dampen, its development.

Imperfect Principals and Lobbyist Agency Costs

Oct 15, 2010 Jack Beermann

One of the secrets to scholarly success is picking interesting topics.  It also helps if your analysis makes an interesting topic even more interesting.  That’s exactly what Matthew Stephenson and Howell Jackson have done in their essay Lobbyists as Imperfect Agents: Implications for Public Policy in a Pluralist System, 47 Harv. J. Legis. 1 (2010).  In this well-written and engaging essay, Stephenson and Jackson describe how principal-agent problems manifest themselves in the lobbying context and hypothesize on how these manifestations might affect public policy outcomes.

Wherever there are principals and agents, there are principal-agent problems, but the lobbying context is not one that readily comes to mind as infected by a serious problem.  Lamenting that principal-agent problems in the lobbying context have not received the attention they deserve, Stephenson and Jackson demonstrate that lobbyists are far from perfect agents and that the principal-agent slack in the relationship has serious consequences for lobbying’s public policy outcomes.

In the first part of the essay, Stephenson and Jackson explain how lobbyists are able to take advantage of their clients and pursue their own interests on the clients’ dimes.  The pathologies they discuss are similar to the ways in which clients find it difficult to monitor and control the performance of lawyers and other learned professionals.  Lobbyists’ have substantial expertise, including relationships with politicians and knowledge about how to locate and operate the levers of power.  And the business of influencing government decisionmaking is fraught with uncertainty, making it difficult to evaluate the outcome in any particular situation.  The lack of a clear measure of successful lobbying makes lobbyists’ clients particularly vulnerable to abuses that make it difficult for them to safely rely on the lobbyist as an agent.

Two of the abuses that Stephenson and Jackson discuss are especially noteworthy: (1) as repeat players, lobbyists want to maintain reputations as people that political actors can work with, and (2) lobbyists may have her own political agendas that they pursue at the client’s expense while reassuring the client that the outcome is the best that the client can achieve in the current political climate.  Because of their expertise and inside knowledge, lobbyists can deceive their clients into shaping their agendas to coincide with that of the lobbyists.  This raises difficult agency problems: how can a client tell if the lobbyist is faithfully pursuing the client’s interests, or instead using superior knowledge to convince the client to move in ways that, on the margin, are more beneficial to the lobbyist than the client?

Stephenson and Jackson argue that agency problems are worse in some contexts than in others.  They claim that “advocacy groups with broad and diffuse membership” struggle with agency issues because of the heterogeneity of the interests of the members and resulting higher monitoring costs.  Similarly, they argue that agency costs will be worse for large broad-based trade associations with imperfectly aligned interests. They further argue that contract lobbying presents a more serious agency cost problem than lobbying by employees of the organization because of higher monitoring costs.  The first two claims are derived from accepted public choice theory concerning interest group behavior.  As Mancur Olson taught in the Logic of Collective Action, large and heterogeneous groups have difficulties not shared by smaller more cohesive entities.  The third claim is counter-intuitive and begs analysis, which Stephenson and Jackson provide.

Stephenson and Jackson conclude that agency costs are exacerbated when lobbying services are provided by outside professionals rather than internal employees because internal lobbyists’ views are more likely to coincide with those of the organization.  This means that monitoring outside lobbyists is likely to be more expensive than monitoring inside ones.  Stephenson and Jackson’s view is supported by the intuitive notion that a lobbyist working inside an organization for a salary is likely to be more loyal than a lobbyist working outside the organization on contract.  While both have alternative sources of potential income, seeking alternative income for the outside lobbyist is likely to be less costly than for the inside lobbyist who would have to replace 100 percent of his or her income.  Add to this the lack of a clear measure of success of lobbying and we have a market that is not very good at providing evidence of efficient outside production of lobbying services, increasing the advantage of internal lobbyists even further.

Stephenson and Jackson conclude with four interesting hypotheses about the effects of lobbyist-agency costs.  These are that lobbyist-agency costs (1) exacerbate the power asymmetries between concentrated and diffuse interests; (2) lead to excessive focus on symbolic issues, as opposed to important reform; (3) create an excessive incentive to delegate to administrative agencies; and (4) promote excessive opposition to reform of decision-making processes. These hypotheses, which follow logically from Stephenson and Jackson’s analysis of the lobbying principal-agent problem, are incredibly interesting and can lead to even greater despair over the likely increase in interest group influence after the Citizen’s United decision which loosened restraints on campaign-related financing.

The first hypothesis is the logical consequence of the lobbying advantage Stephenson and Jackson find for smaller, more cohesive, interests.  The second hypothesis, excessive focus on symbolic issues, is a consequence of the lack of clear measures of success in lobbying– lobbyists will focus their energy, and their clients’ attention, on small areas in which they can win and conversely, will attempt to divert attention away from losses or mislead the client into believing that a loss would have been even worse had the lobbyist not worked on their behalf.  The third hypothesis, excessive delegation to administrative agencies, results from lobbyists’ incentive to work for vague or incomplete statutes so they can claim victory and create demand for more lobbying services when issues go to administrative agencies for final resolution.  The final hypothesis, opposition to reform of decision-making processes, results from lobbyists’ development of expertise in existing processes.  The extreme case would be hiring a lobbyist to lobby in favor of restrictions on lobbying.  Stephenson and Jackson’s analysis demonstrates how difficult it would be to find an experienced lobbyist to take up that cause.

Does Stephenson and Jackson’s analysis leave room for any hope that lobbying is not really even worse than it seems?  After all, an open political system in which interests, through lobbyists, compete for the attention of policymakers seems on the surface to be better than a system in which participation is suppressed.  Stephenson and Jackson have certainly presented persuasive theoretical reasons to believe that reality is even worse than appearances.  Perhaps the only hope is that as lobbying costs increase (they are now estimated at something like $32 billion per year in the United States), clients will become more educated and take Stephenson and Jackson’s advice and put their lobbyists on the payroll where they are likely to do less damage than the lobbying firms that have become so pervasive.  One thing I know we need more of is scholarship like this excellent contribution by Stephenson and Jackson.

E-Government and Inequality in Public Participation

Sep 27, 2010 Cary Coglianese1 comment

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.

In much earlier work, Schlozman, Verba, and Brady – along with other political scientists – have demonstrated that there exists a clear class bias in political participation, with better educated and more affluent citizens taking more political action.  Schlozman, Verba, and Brady’s most recent study therefore aimed to determine whether the Internet has broadened participation in such a way as to reduce the well-known socio-economic status (SES) bias in American politics.   To find out, they asked their respondents about various kinds of political activity that can be performed both online and offline, such as contacting government officials, signing petitions or sending letters, making campaign contributions, and participating in political conversations.  The bottom line:  “[N]o matter how political participation is measured, political activity rises sharply with socio-economic status” – with or without the Internet.

Schlozman, Verba, and Brady analyze their data methodically, taking into account that access to the Internet itself is not distributed evenly throughout society.  Obviously younger people are more active on the Internet than older people.  And poorer households have diminished access to the Internet compared to wealthier households, the so-called digital divide.  Even taking these important factors into account, Schlozman, Verba, and Brady find “no evidence that the relationship between Web-based participation, on the one hand, and education or income, on the other, is different from the relationship between offline political participation and these SES factors.”  In short, the Internet has made no difference.

Perhaps we should not be surprised at these results.  After all, as Schlozman, Verba, and Brady note, “[t]he overwhelming share of Internet use is for non-political activities that range from finding directions to viewing pornography to keeping up on a social networking site.”  When interest in, and knowledge of, politics and policymaking are neither widely nor evenly distributed across society, vast changes in patterns of public participation seem unlikely to occur, even with advances in digital government.

Yet strikingly, Schlozman, Verba, and Brady’s data draw from a period of unusually intense public interest in American politics, with tens of thousands of Americans regularly turning out for campaign rallies held by a youthful, energizing presidential candidate – one who also deliberately and creatively deployed the Internet as part of his successful political strategy.  If there were ever a time when the Internet might have leveled the playing field, even somewhat, the summer of 2008 would almost surely have been it.

Maybe the Internet’s time simply has yet to arrive.  Perhaps those hoping to see the Internet fundamentally transform politics and policymaking will eventually have their hopes fulfilled with the further diffusion of online technologies across society or upon the development of a still more innovative technology.  Schlozman, Verba, and Brady appropriately acknowledge that their findings remain tentative for this reason.  Yet for now, the Internet appears to be the greatest political tool not for all Americans, but for the usual suspects.  Even a later Pew Internet and American Life Project survey, from December 2009, confirms that “[h]igh-income and well-educated internet users are much more likely to use government services and information online.”

If e-government does portend a revolution in citizen participation, it is still too early to arrive for the party.