Person:

Gersen, Jacob

A cottage industry in administrative law studies the various mechanisms by which Congress, the President, and the courts exert control of administrative agencies. Restrictions on the appointment and removal of personnel, the specification of requisite procedures for agency decisionmaking, presidential prompt letters, ex ante review of proposed decisions by the Office of Management and Budget, legislative vetoes, and alterations in funding or jurisdiction all constitute potential mechanisms for the control of agency behavior. In this paper, we focus on a much more elemental mechanism of control that has surprisingly gone relatively unnoticed in the literature on administrative agencies: Congressional control of the timing of administrative action. The use of deadlines that require agency action to commence or complete by a specific date is extremely common in the modern administrative state, but even basic descriptive statistics about the frequency and nature of these mechanisms are lacking, much less a fully elaborated theory of regulatory deadlines. This paper offers the beginning of such a theory by providing a doctrinal, theoretical, and empirical analysis of deadlines in administrative law.

Soft law consists of rules issued by lawmaking bodies that do not comply with procedural formalities necessary to give the rules legal status yet nonetheless influence the behavior of other lawmaking bodies and of the public. Soft law has been much discussed in the literatures on international law, constitutional law, and administrative law, yet congressional soft-lawmaking, such as the congressional resolution, has received little attention. Congressional soft law affects behavior by informing the public and political institutions about the intentions and policy preferences of Congress, which are informative about future hard law as well as of Congress's view of the world, and thus relevant to the decision making of various political agents as well as that of the public. Congressional soft law is important for a range of topics, including statutory interpretation and constitutional development. Other types of soft law—international, constitutional, and judicial—are compared.

This paper provides a descriptive, positive, and normative analysis of temporary legislation, statutes containing a clause terminating legal authority on a specified future date. Notwithstanding the fact that a significant portion of the legislative docket consists of statutes that terminate automatically absent affirmative Congressional reauthorization in the future, the political dynamics of such statutes remain significantly under-theorized. Yet, temporary statutes have a long and storied pedigree both in the United States and elsewhere. After a historical overview, the paper outlines the major conceptual features of temporary statutes and demonstrates the implications for allocations of power and responsibility within and among the three branches of government, with a particular emphasis on the political economy of temporary legislation. Lastly, using a mixture of theoretical analysis and a case study, the paper argues for greater reliance on temporary statutes as a mechanism for responding to newly recognized risks.

Positive political theory (PPT) is not new to administrative law, but it is increasingly becoming part of the mainstream, as evidenced by the Harvard Law Review’s publication of Professor Stephenson’s Strategic Substitution Effect (SSE). Both the normalization of PPT and the publication of SSE are good for many reasons. One important reason is that criticisms of PPT in administrative law are beginning (although just barely) to push past a standard assortment of first order critiques. Historically, PPT administrative law work was subject to three types of objections. First, models were often assailed for using an unnecessarily complex technical apparatus to demonstrate a result that many readers found trivially true. Second, other critics complained that models made assumptions that were such radical oversimplifications of reality that they could not possibly provide actual insight into the reality of law and politics. Third, many models in administrative law historically produced results that fit so poorly with the world they knew that readers were forced to conclude that the entire PPT project was altogether fruitless — a failed endeavor based on faulty premises, foolish methodology, and fantastical predictions. If SSE is any indication, we are reaching a turning point, as the Article is subject to none of these criticisms — or at least neither of the first two. The basic setup of the model is straightforward and nearly intuitive, balancing technicality with parsimony. The Article is characteristically innovative and insightful — precisely the sort of work that is rapidly becoming associated with Professor Stephenson’s ideas and methods.

This Article articulates and analyzes the possibility of an unbundled executive. The unbundled executive is a plural executive regime in which discrete authority is taken from the President and given exclusively to a directly elected executive official, for example, a directly elected War Executive, Education Executive or Agriculture Executive. We show that a partially unbundled executive is likely to perform better than the completely bundled executive structure attendant in the single executive regime. That is, the standard arguments used to justify a single strong unitary executive in the United States: accountability, energy, uniformity, coordination, and so on, actually justify a specific type of plural executive, not the single executive structure favored in Article II. The thesis is both unusual and controversial in that there has been virtually no serious theoretical challenge to the single executive structure for more than a century.

There are nearly half a million elected officials in American local governments, and the timing of local elections varies enormously even within the same state. Some local elections are held simultaneously with major federal and state races, while others are held at times when no higher level elections coincide. We analyze the effect of election timing by exploiting a 1980s change in the California Election Code, which allowed school districts to change their elections from off-cycle to on-cycle. Because we are able to observe very large within-district changes in voter turnout resulting from changes in election timing, we are able to isolate the effect of turnout on policy outcomes, including teacher salaries and student achievement tests. Our analysis demonstrates that while election timing produces dramatic changes in voter turnout, resulting changes in public policy are modest in size and not robust statistically.

Despite decades of scholarship in law and economics, disagreement persists over the extent of employment discrimination in the United States, the correct explanation for such discrimination, and the normative implications of the evidence for law and policy. In part, this is because employment discrimination is an enormously complex phenomenon, and both its history and continued existence are closely linked to politics and ideology. However, some portion of this dispute can also be traced to the incomplete use of empirical evidence. Most economic theories of employment discrimination imply empirical relationships between discrimination and the market structure of particular industries and characteristics of their workforces. Yet empirical work has most typically focused on either specific industries or the economy as a whole, and little systematic evidence about market structure and patterns of actual employment discrimination claims exists. This Article compiles and analyzes an original data set comprised of industry-specific measures of employment discrimination claims, market conditions, and labor force characteristics. In so doing, this Article contributes to an emerging literature that tests the core theoretical positions in the law and economics of discrimination literature, which in turn promises to advance understanding of both the causes of and remedies for employment discrimination.

The distinction between legislative rules and nonlegislative rules is one of the most confusing in administrative law. Yet, it also critical for understanding not just when agencies must use procedural formality to issue policy judgments, but also the subsequent treatment of those judgments by courts. This Essay explores the legislative rule conundrum through the lens of Judge Richard A. Posner's opinion in Hoctor v United States Department of Agriculture. To describe the legislative rule debate is to conjure doctrinal phantoms, circular analytics, and fundamental disagreement even about correct vocabulary. Hoctor illustrates many of the fault lines in existing doctrine and suggests a novel if ultimately unsatisfying approach to legislative rules doctrine that turns on characterizing the form, content, and relationship between the new rule and existing law. This Essay suggests instead that much of the legislative rule doctrine might well be jettisoned, avoiding confusion and uncertainty about when agencies must use formal procedures to issue policy.