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The Life of Administrative Democracy
Get PDFImagine if Congress, the President, and the industries they hoped to regulate all decided that neither politically isolated bureaucrats nor a popularly sanctioned President should wield the power to administer Congress’ laws, to make legislative-type policy, to enforce that policy, and to adjudicate disputes under it. Imagine if there were another experiment, one that has persisted, but few have noticed.Imagine no longer. Overlooked by most, there is a model for federal administration that does not rely on isolated administrators or Presidential control, but instead on elected bureaucrats. Today, the United States Department of Agriculture houses over 7,500 elected farmer-bureaucrats sitting on over 2,000 administrative committees. This article explores the elected farmer committees in detail and provides the first and only complete look at the committees in the legal literature.Providing local personnel in every corner of the country, the elected farmer committees began during the New Deal as an instrument to help transition the United States Department of Agriculture from an education and research organization into the vast regulatory agency that it is today. Though the power of the committees has shifted over the decades, they are indeed imbued with important administrative powers including policymaking, enforcement, and adjudication. The best evidence of their power is their forgotten role in the famous case Wickard v. Filburn. That case is remembered as a watershed for the Commerce Clause, but it began with an elected farmer committee in Ohio setting limits on Farmer Filburn’s wheat production, discovering that he was overproducing, and then levying the fine that Filburn challenged all the way to the Supreme Court and first year Constitutional Law classes.It is not, of course, unusual that the actions of an administrative agency would lead to a long and important court battle. What is unusual is that the farmer committees are elected. Why did the New Deal leaders at USDA decide to rely on elected administrators instead of typical political appointment? This article argues that a combination of mostly unstated ideological commitments drove the unusual choice, including a Jeffersonian idealism about the virtuosity of farmers; a hope of instilling a more civic and deliberative democracy throughout farm country; corporatist and pluralist political cynicism; and patent elitism and racism.Ultimately, this article argues that despite the lofty hopes of those who birthed the elected farmer committees over 80 years ago, the ideal of administrative democracy has tended more towards its worst traits and has failed to live up to its best because it has relied too heavily on majoritarian decisionmaking at the expense of thoughtful reason giving and meaningful deliberation. The elected farmer committees, then, provide administrative law a new relief against which to judge what is best and worst about the standard technocratic and Presidentialist models of administrative law
The Death of Administrative Democracy
Get PDFEverybody agrees. Everybody is certain. There are no elected bureaucrats.That pervasive certainty must come as quite a surprise to elected bureaucrats.The federal bureaucracy presents examples of administrative elections, but the most significant is the United States Department of Agriculture’s elected farmer committees. There are over 7,500 elected farmers sitting on over 2,000 committees, and these committees carry out paradigmatic administrative duties including policymaking and adjudication.Taking for granted that administrators are unelected, judges have shaped an ascendant doctrine of Presidentialism. This doctrine presumes that the administrative state is only legitimate insofar as it is under the direct control of the President because the President is electorally accountable. Presidentialist doctrine is based on majoritarian legitimacy. Surprisingly, were Presidentialist doctrine applied to the majoritarian, elected, farmer committees, it would strike them down because they are tied directly to voters rather than indirectly through the President. This suggests a weakness in Presidentialism: The theory relies on administrative majoritarianism but rejects electoral authority untethered from the President.This article argues that both Presidentialism and electoral administration are flawed. Both rely on a one-dimensional oversimplification of democracy. Rather than tidying-up democracy by fitting it into mere majoritarianism, judges and scholars should focus on a more robust notion of democracy animated by, and accountable through, elections, but also fundamentally reliant individual participation, reason giving, and deliberation. This ideal of democracy has a long pedigree, but the novel consideration of electoral administration provides new insights and support
Putting it Together: Musical Theatre as an Academic Discipline
Get PDFMusical Theatre is an art form that integrates singing, acting, dancing, and production for the purposes of storytelling. It is an artistic field that is extremely interdisciplinary, and it draws upon many different areas of knowledge for performance and education. Additionally, Musical Theatre has evolved into a viable academic field of study. It incorporates artistry and academic analysis as a way to enhance performance and higher education. This paper will use Practice as Research theory, creativity theory, and disciplinary discourse theory to explore the ways Musical Theatre successfully functions as an art form and an academic discipline
Suffering Matters: NEPA, Animals, and the Duty to Disclose
Get PDFThe National Environmental Policy Act (NEPA) requires the federal government to disclose potential environmental harms arising from agency actions. Animal suffering is an environmental harm, yet no court has ruled that its infliction triggers a reporting obligation under NEPA. This Article argues that animal suffering should be a cognizable environmental harm under NEPA, that considerations of animal suffering should factor into whether an agency must prepare an EIS--and should be discussed in the content of the EIS.
Part II of this Article introduces and explains the procedural requirements of NEPA. Part III discusses animal suffering--how it is defined, how laws deal with or fail to deal with issues of animal cruelty, and outlines the ways animals suffer as a result of federal actions. Part IV offers examples of major federal actions that cause animal suffering--including federal loan guarantees for Concentrated Animal Feeding Operations (CAFOs) and wildlife management practices, such as depredation, carried out by federal Wildlife Services (WS). Part V establishes that animals are a part of the “human environment” as defined by NEPA and that the harms inflicted on animals resulting from major federal actions constitute a “significant impact,” that should trigger NEPA review and warrant discussion in an Environmental Impact Statement (EIS). Finally, we argue that even if animal suffering alone were insufficient to trigger NEPA review, that suffering in conjunction with the various other environmental impacts associated with activities that cause animal suffering should trigger NEPA review regardless
Improving Court-Mandated Divorce Education by Recognizing the Effects of Parents’ Childhood Trauma
Get PDFLaw School as a Consumer Product: Beat \u27em or Join \u27em
Get PDFWith rising costs, pressure on performance metrics, and competitive high-profile rankings, law schools are more than ever before being judged on a consumer satisfaction basis by both students and the public. While this perception has been growing over the past two decades, it has reached a crisis point in legal education.1 Courts have been more readily viewing the policies and practices of educational institutions as that of a customer-provider relationship and seeking ways to enforce solutions to the problems they see regarding the product sold.2 The growing trend of treating education as a consumer product that is sold to students has forced courts to consider contract claims by students and has shaped the policies of educational institutions nationwide.3 The connection between consumerism and higher education scrutiny has been explored for quite some time.4 Some have theorized that law schools are leading the way in being scrutinized from this perspective and that universities as a whole can learn from their experiences.5 When students have their choice of educational institutions, they may act like consumers and choose to spend their money based on metrics that satisfy them as buyers. This consumer mindset does not only impact admissions, but also can affect the retention of students.6 The loss of students who transfer out can take a serious toll on a law school, including potential detriments to bar passage, productive classrooms, the loss of future high performing alumni, and the cost of replacing tuition generation.7 Schools are thus currently pressured to address the consumer issue. Many of the conflicts that arise between students, as consumers, and their institutions are not necessarily based in the substance of rules. Instead, much of the complaints stem from the institutions’ transparency and communication about various aspects of the educational experience, from the classroom to students’ prospects on the job market. As such, institutions should consider the student perspective in formulating how they present their program of education and the various aspects within it. While others have questioned outright whether college students are consumers,8 this article will not debate whether law students treat their institutions with a consumer mindset. It presumes they do and instead seeks to solve the problem for institutions. Part II of this article will summarize how this mindset arose in education—specifically how it arose in legal education—and will examine previous conflicts between students and institutions as a result. Part III will examine different areas of law school operations where traditional academic mindsets and student-consumer mindsets may clash, and offers solutions and strategies as to where and how the consumer pressure should be embraced to make institutional change, and where it should be resisted to ensure the consumer pressure does not result in changes that are not in students’ best long-term interests. Part IV offers some conclusions on the approach
