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Legal Analysis, Policy Analysis, and the Price of Deference: An Empirical Study of Mayo and Chevron
No full textA huge literature contemplates the theoretical relationship between judicial deference and agency rulemaking. But relatively little empirical work has studied the actual effect of deference on how agencies draft regulations. As a result, some of the most important questions surrounding deference—whether it encourages agencies to focus on policy analysis instead of legal analysis, its relationship to procedures like notice and comment—have so far been dominated by conjecture and anecdote. Because Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. applied simultaneously across agencies, it has been difficult to separate its specific causal effect from other contemporaneous events in the 1980s, like the rise of cost-benefit analysis and the new textualism. This Article contends with this problem by exploiting a unique event in administrative law: the Supreme Court’s 2011 decision in Mayo Foundation v. United States, which required that courts apply Chevron deference to interpretative tax regulations. By altering the deference regime applicable to one specific category of regulation, Mayo created a natural experiment with a treatment group (interpretative tax regulations) and a control group (all other regulations)
The Right to Strike as Customary International Law
No full textThere has been a dramatic recent resurgence of strike activity in the United States. From auto plants to supermarkets to public schools to fast food outlets, workers around the country have recognized the fundamental importance of strikes—in economic, political, and dignitary terms. Still, judges and legal scholars have had a difficult time establishing that the right to strike, which exists at a statutory level with substantial qualifications, should receive constitutional recognition. There have been isolated instances or hints of judicial support, as well as scholarly contentions that the right may exist in some dormant form. But arguments to federal courts have regularly come up short, whether based on withholding labor as a due process liberty right; as resisting involuntary servitude; or as engaging collectively in freedom of association. While high profile strikes have become more visible around the world as well as in this country, labor law scholars have acknowledged, at times reluctantly, that the right to strike is not protected under well-settled U.S. constitutional standards
Fair Housing’s Third Act: American Tragedy or Triumph?
No full textFifty-two years ago, Congress enacted a one-of-a-kind civil rights directive. It requires every federal agency—and state and local grantees by extension—to take affirmative steps to undo segregation. In 2020, this overlooked Fair Housing Act provision—the “affirmatively furthering fair housing” or “AFFH” mandate—had heightened relevance. Perhaps most visible was Donald Trump’s racially charged “protect the suburbs” campaign rhetoric. In an appeal to suburban constituents, his administration replaced a race-conscious fair housing rule with a no-questions-asked regulation that elevates local control above civil rights. The maneuver was especially stark as protesters marched in opposition to systemic racism’s many forms. In this moment of racial awakening, it is critical to revisit how neighborhood segregation affects nearly all aspects of American life. We live in a racist ecosystem, and racial segregation is its defining feature. Segregation’s profound influence reinforces the importance of the AFFH mandate as a remedial tool
Transactions Benefits
No full textAt least since Ronald Coase, law and economics has been deeply engaged with transactions costs. These frictions can prevent resources from being efficiently deployed in production and goods from reaching their highest-valuing users. The systematic study of how to reduce or minimize transactions costs has yielded explanations, for example, of the boundary between the firm and the market, the allocation of initial entitlements, and the choice between deploying property rule or liability rule remedies when entitlements are breached. However, the inevitable frictions that attend to human affairs can produce gains as well as losses, and law and economics has almost entirely neglected the study of these transactions benefits. At least three varieties of transactions benefits appear immediately once one starts to look for them. Publicity benefits arise when features of one transaction become known and are valuable to other circumstances and perhaps to the legal system at large. One reason to oppose settlement and arbitration, for example, is that even if these forms of dispute resolution involve lower transactions costs than adjudication, they also fail to generate adjudication’s valuable transactions benefits. Legitimacy benefits arise when the frictions involved in legal arrangements transform the beliefs and desires of those who experience them in ways that sustain the authority that the arrangements have over the parties within them. Accounts from social psychology of the authority of adjudication and, more broadly, the role that procedure plays in producing legitimacy emphasize this variety of transaction benefit. Finally, solidarity benefits arise when legal frictions constitute intrinsically valuable relationships among the parties who produce them. Adjudication’s transformative powers and contractual collaboration illustrate this variety of transactions benefit
Symposium: Consumer Welfare Market Structure and Political Power
No full textSince the middle of the last century, two competing visions have dominated the fields of antitrust and consumer protection: neo-liberal and progressive. The neo-liberals view antitrust and consumer protection as existing only in service of competitive markets; the welfare of consumers is measured by price theory and consumer protection, in any form other than notice, is viewed as paternalistic. The progressives take a more holistic view: they see antitrust as concerned with the competition but also with the market structure; similarly, they see consumer protection as considering the realities of consumer behavior and the possibility of predatory behavior in addition to information asymmetry. Finally, the progressives see both consumer welfare and market structure as intimately intertwined with the health of democracy.
The neo-classical approach is associated with Robert Bork and the Law and Economics Movement.' The progressive strand is older, identified with Brandeis and early 20th Century social reform. As a matter of chronology the Brandeisian view dominated into the 1970s, but from 1980, until recently, the Borkian law and economics approach has been in ascendancy in Congress, the academy, and in the courts.
Technological change and events in the broader economy have caused the politics and the academic focus to shift. The financial crisis of 2008-09 drew attention to how pathologies of consumer credit markets could create systemic risk, even (indeed especially) in markets that appeared to be competitive. Internet platforms and so-called "fintech" have reshaped our ideas about market power and its interrelationship with political power. This symposium, held at Brooklyn Law School in September of 2020, provided
an opportunity to look deeply at the effect technology has had on consumer transactions, at the politics of antitrust, and at the institutions that regulate and respond to these changes in the marketplace
Mechanism Design and Behavioral Economics: Incentivizing Optimal Pre-Trial Discovery
No full textJudge Ralph K. Winter, Jr. Prize for Law and Economics
A. Klevorick, H. Hansmann, A. Schwartz
Awarded annually to the best student paper written in law and economics.Practitioners and judges recognize excessive civil discovery to be a widespread and serious issue. Since litigants bear only a small portion of the costs of their own discovery requests and face unconscious psychological biases, they regularly seek far more discovery than would be relevant and proportional to proving their case. This in turn massively inflates litigation costs for their opponents. The 2015 Amendments to the Federal Rules of Civil Procedure (FRCP) recognized and confronted this problem directly: they rewrote Rule 26(b)(1) to encourage judges to more actively ensure that discovery requests are “proportional” to the needs of the case. In showing precisely how judges should implement the revised Rule 26(b)(1), I first explore the causes underlying excessive discovery. I draw on insights from classical economics (which understands litigants as purely rational actors) and from behavioral economics (which explores litigants’ psychological biases) to explain the current prevalence of excessive discovery. I then use techniques from mechanism design, a branch of mathematical economics, to develop a new discovery system. Under this system, judges formulate rigorously the “proportionality” standard envisioned in the amended FRCP, which they implement by correcting for the aforementioned causes of excessive discovery. I conclude by exploring questions regarding this proposed system’s real-world feasibility
The Discriminatory Purpose of the 1994 Crime Bill
No full textHarsh criminal sentencing laws enacted in the 1980s and 1990s have received renewed attention through a confluence of two seemingly contradictory events: an awakening to racial justice concerns through protests against the police killings of George Floyd and Breonna Taylor (among many others), and the election of President Joseph R. Biden, Jr., who, as a senator, was one of the chief architects of policies that fueled mass incarceration and exacerbated racial disparity in the criminal legal system. Historians in particular have begun to study declassified documents and newly available archival evidence that provide critical insight into the behind-the-scenes deal-making and legislative intent that led to the crime control policies that emerged at the federal level since the 1960s. Specifically, historical research indicates that federal lawmakers were well aware of the racially disparate impact of mandatory minimum sentencing schemes and the death penalty, yet chose to double down on those policies and reject alternative proposals that would have made the application of criminal law more equitable. This new frontier of historical research is not merely of academic interest; it has important implications for constitutional scholars and defense attorneys who can draw on these findings to challenge criminal statutes under the Equal Protection Clause. This Article highlights the power of collaboration between historians and legal scholars and practitioners who wish to train this new historical analysis on the modes and means by which our criminal legal system reinforces racial inequality. We focus our approach through the lens of a relatively obscure provision of the Violent Crime Control and Law Enforcement Act of 1994, which imposed a one-year mandatory minimum for distributing narcotics within 1,000 feet of a public housing project. We examine the barriers to challenging such a statute under the Equal Protection Clause based on current Supreme Court precedent and circuit caselaw. We suggest a jurisprudential avenue for renewed equal protection challenges, namely, supplying evidence that Congress adhered to particular policies with full knowledge of their discriminatory impact. We examine the disparate enforcement of the public housing provision and its discriminatory purpose, as informed by newly developed historical evidence about the 1994 Crime Bill. Finally, we consider the lessons criminal defense attorneys and policymakers may learn from our example. We argue that a nuanced understanding of the true history of the war on crime is essential if President Biden and those in his administration who played instrumental roles in creating these discriminatory policies are serious about responding to the demand from the streets to dismantle them
Collaborative Governance Under the Endangered Species Act: An Empirical Analysis of Protective Regulations
No full textRecent conservation and administrative law scholarship emphasizes the need for potential legal adversaries to work together. Stakeholders and regulators can pool their political capital, money, property, expertise, and legal leverage to achieve more than could be accomplished through mere mechanical implementation of statutory commands. Most commentators associate collaboration with programs promoting fuzzy objectives to engage the public and advisory groups. The Endangered Species Act (ESA) is a polarizing statute that imposes seemingly uncompromising mandates. But this Article demonstrates that the ESA actually provides rich opportunities for collaborative governance. In exploring this underappreciated success story, we document how conservation collaboration adapts otherwise strict, generic prohibitions to the recovery needs of individual species on the brink of extinction. We identify conditions under which collaboration arises. This Article examines the nearly two hundred ESA protective regulations that tailor federal restrictions to the ecological and social circumstances of particular extinction threats. Our original empirical study explores how the rules manifest collaborative governance, as well as the extent to which they foster imperiled species recovery. We focus on provisions in which parties agree to constrain activities in exchange for limited statutory liability. Almost threequarters of the protective regulations substitute practice-based limitations for difficult-to-detect, proximate-effect prohibitions
A Symposium on Jack M. Balkin's The Cycles of Constitutional Time: How to Do Constitutional Theory While Your House Burns Down
No full textThe events of the past five years, culminating in the 2020 election and the January 6, 2021, attack on the U.S. Capitol, pose a new and urgent set of questions for American constitutional theory.
The first is constitutional diagnosis: What has gone wrong with our constitutional system? The second is constitutional repair: What can we do in the short run to repair the damage that has already occurred to our democracy?
The third is constitutional reform: What reforms are necessary, either through constitutional amendment or sub-constitutional means, to strengthen our constitutional democracy for the long run? The fourth is constitutional maintenance: What institutions can we shore up or create to maintain our constitutional democracy as it meets the challenges ahead?
These questions emerged for many different reasons: elite and popular polarization, the unraveling of the New Deal settlement, increasing constitutional dysfunction, democratic backsliding, and accelerating constitutional rot.
The Cycles of Constitutional Time tries to address these questions, using cycles as a heuristic to understand the interaction of political agency and political structure that generates constitutional development over time. Because its analysis ends in early 2020, this Essay discusses developments since the book was written: the old order's attempts to maintain political power through
minority rule, and what it would take for a new constitutional regime to form. It also briefly outlines three possible paths of future constitutional development.
The cycle of rot and renewal in American constitutional history is not an iron law of politics. Rather, it is a sign of the remarkable durability of our constitutional system-that it keeps bouncing back from the forms of democratic decay that have done in many other republics before it.
Yet this durability comes with a price. It makes the system unwieldy and prevents a great deal of potentially valuable change, including the very changes that might be necessary to reverse the growing decay in our institutions. A central question for American constitutional theory is whether our system's resistance to rapid change will finally be its undoing, or whether pent-up
frustrations will produce mobilizations that successfully renew American democracy