Person:

Stephenson, Matthew

Economists have made great progress in understanding the incentives and behavior of actors who operate outside of traditional economic markets, including voters, legislators, and bureaucrats. The incentives and behavior of judges, however, remain largely opaque. Do judges act as neutral third-party enforcers of substantive decisions made by others? Are judges "ordinary" policymakers who advance whatever outcomes they favor without any special consideration for law as such? Emerging recent scholarship has started to explore more nuanced conceptions of how law, facts, and judicial preferences may interact to influence judicial decisions. This work develops a perspective on judging that can usefully be understood as the modern manifestation of American Legal Realism, a jurisprudential movement of lawyers, judges, and law professors that flourished in the early twentieth century. The purpose of this essay is to introduce, in simplified form, the Realist account of judicial decision making; to contrast this view with alternative theories about law and judging; and to sketch out how a more explicit integration of the Realists' conceptual insights about law and judicial behavior might enrich the rapidly expanding economic work in this field.

In the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), Congress included a provision requiring bankruptcy courts evaluating individual debtors' financial circumstances to utilize certain monthly expense standards developed by the Internal Revenue Service for assessing taxpayers' ability to pay their taxes (the Standards). While the IRS retains a great deal of discretion in applying the Standards for its own purposes, bankruptcy courts have interpreted the BAPCPA as giving the Standards binding force in the bankruptcy context. This unusual arrangement - where a statute regulating one substantive area incorporates documents promulgated by an unrelated administrative agency for use in a different substantive area - presents bankruptcy judges with a set of unfamiliar and difficult administrative law questions. To what extent, if at all, should bankruptcy courts defer to IRS statements, contained in documents other than the Standards themselves, about how the Standards should be applied? May the IRS alter the Standards for its own purposes but not for bankruptcy purposes, or vice versa? What procedures must the IRS use when it modifies the Standards, especially in light of the fact that the Standards now have an apparently binding effect in bankruptcy cases? These questions have become even more pressing since the IRS in 2007 amended the Standards without public notice and comment and provided different effective dates for IRS and bankruptcy court use of the amended Standards. This essay explains from the standpoint of administrative law the difficulties that these questions present and suggest a few possible (and in some cases competing) administrative law theories for thinking about them.

This Article argues that courts can, and often should, implement constitutional guarantees by crafting doctrines that raise the costs to government decisionmakers of enacting constitutionally problematic policies. This indirect approach may implement a kind of implicit balancing of interests, in which the damage to constitutional values is weighed against the strength of the government’s interest in the challenged policy, more effectively than alternative approaches. When the government has better information than the reviewing court about the effect of the challenged policy on constitutionally relevant interests, heightened enactment costs act as a kind of screening device: if the government would still enact a given policy in the face of substantial additional enactment costs, the probability that the policy serves significant government interests is likely to be higher. This Article first develops the theoretical argument as to how (and under what conditions) doctrines that manipulate legislative enactment costs may be more effective tools for judicial implementation of the Constitution than doctrines that require direct judicial assessment of the relative strength of the competing interests. The Article further contends that the federal judiciary already has the capacity to fashion doctrines that function in this way, and indeed current doctrine influences legislative enactment costs more than has generally been appreciated.

Chevron, U.S.A. v. Natural Resources Defense Council lays out a two-step process that courts must follow when they review a federal agency's construction of a federal statute. We argue that Chevron, rightly understood, has only one step. The single question is whether the agency's construction is permissible as a matter of statutory interpretation. The two Chevron steps both ask this question, just in different ways, and are thus mutually convertible: any opinion written in terms of one step can be written, without loss of content, in terms of the other step. Chevron's artificial division of a unitary inquiry causes material confusion among commentators and courts, and has no benefits; administrative law should jettison the two-step framework.

This article considers the type of evidence that an overseer (e.g., a court) should require before allowing a government agent to take some proposed action. The court can increase agency research incentives by prohibiting actions unless the agent produces supporting evidence, and/or by permitting action even when the agent uncovers adverse evidence. The court thus faces a trade-off between an evidentiary standard's ex post effects on the agent's policy decision and its ex ante effects on the agent's incentive to do research. An extension allows the court to make research effort a precondition for action, regardless of the evidence produced.

It is widely believed that insulating an administrative agency from the influence of elected officials, whatever its other benefits or justifications, reduces the agency's responsiveness to the preferences of political majorities. This Article argues, to the contrary, that a moderate degree of bureaucratic insulation from political control alleviates rather than exacerbates the countermajoritarian problems inherent in bureaucratic policymaking. An elected politician, though responsive to majoritarian preferences, will almost always deviate from the majority in one direction or the other. Therefore, even if the average policy position of a given elected official tends to track the policy views of the median voter in the electorate, the average divergence between the preferences of that official and the median voter in the electorate is generally greater than zero. Forcing the politically responsive official to share power with a partially insulated bureaucracy can reduce the variance in policy outcomes. because bureaucratic insulation creates a kind of compensatory inertia that mutes the significance of variation in the elected official's policy preferences. Up to a point, the median voter's benefit from this reduction in outcome variance outweighs the costs associated with biasing the expected outcome away from the median voter's ideal policy.

We analyze the positive and normative implications of regulatory oversight when the policymaking agency can improve the quality of regulation through effort, but only some kinds of effort are observable by the overseer, and the overseer's only power is the ability to veto new regulation. Such oversight can increase the quality of agency regulation, but it also introduces inefficiencies—the agency underinvests in unobservable effort and overinvests in observable effort. Agencies have no incentive to conceal their activities from the overseer; the reforms that are likely to reduce inefficiency are therefore those that improve overseer expertise or lower the costs of agency disclosure, not those that compel disclosure. The normative implications depend on the relative severity of bureaucratic drift and slack problems. When slack is paramount, an overseer that is more anti-regulation than the agency or society improves social welfare, as long as it does not deter the agency from regulating entirely. When drift is paramount, oversight improves social welfare only when it deters regulation. In this case, regulatory oversight is weakly dominated by one of two alternatives: eliminating oversight or banning regulation.

The relationship between third-party contract enforcement and informal networks raises important sociological, political, and economic questions. When economic activity is embedded in social structures, what are the implications of third-party contract enforcement for the scope and nature of economic relations? What determines whether individuals rely on formal legal institutions or informal networks to sustain trade relationships? Do legal institutions erode informal networks? We develop a model in which a trade-off exists between size and sustainability of networks. By adding the possibility of fee-based, enforceable contracts, we provide a theoretical explanation for the coexistence of legal contract enforcement and an informal economy. We find that legal enforcement has little effect on networks until law becomes sufficiently inexpensive, at which point small decreases in the cost of law have dramatic effects on network size and the frequency of use of the legal system.

The US government has announced an initiative to promote the “rule of law” in the People’s Republic of China. However, though China has also endorsed building the “rule of law” as a goal, the American and Chinese views of what “rule of law” entails differ substantially. In the US government, rule of law reform is seen as a way to promote human rights and political reform, whereas the Chinese government wants to restrict law reform to those areas closely related to developing a market economy. To deal with this divergence in goals, the US has adopted a “Trojan Horse” strategy: the belief is that the Chinese will allow US-sponsored law reform programs for economic reasons, but once established, these programs will lead to broader political reform. However, this view is not well-supported by theory or empirical evidence. Thus, while law reform programs in China may be worthwhile, we should be skeptical of their ability to trigger more fundamental political reform.