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Outsourcing Agency Rulemaking
Get PDFWhen it comes to understanding the political dynamics of agency rulemaking, the place to start is Rachel Potter’s book Bending the Rules: Procedural Politicking in the Bureaucracy, about which the Yale Journal on Regulation published a blog symposium in 2019. Through a mix of qualitative and quantitative methods, Potter explores how agency officials—both career civil servants and political appointees—play a role in the rulemaking process and leverage procedural rules to help advance their preferred policy outcomes
Illegality Defense to Contractual and Restitutionary Claims: A Comparative and Philosophical Study
Get PDFThe aim of this dissertation is to study the practice and theories regarding the law of illegality, in the context of contract and unjustified enrichment.
Illegality (and immorality) is universally seen as a ground for invalidating contracts. It is widely acknowledged that the courts have the prerogative to limit enforcement of contracts that transgress the boundaries of public policy . In both Common Law and the Civil Law systems, it is usually in the law of contract that the problem of illegality is dealt with. An illegal contract is invalid, but it may be performed, either in full or in part. The ensuing problem is whether a party who performs an illegal contract is entitled to restitution from the recipient of the performance. Related to illegality defense in contract law, there is an inevitable problem of in what circumstances the illegality doctrine forecloses a claim for restitution under the law of unjustified enrichment
Cost-Benefit Analysis and the Problem of Long-term Harms from Environmental Pollution
No full textOne of the most contentious aspects of using cost-benefit analysis in the regulatory processinvolves discounting the value of future harms . Based on updated data from U.S. Treasurynotes and Inflation-Protected Securities, the Biden Administration’s new Circular A-4guidance will replace the unreasonably high discount rates of 3% and 7% from the prior 2003guidance with a single lower rate of 1.7% when assessing a regulation’s effects from thepresent through 30 years into the future. This post will review why discounting is done incost-benefit analyses and explain how the new guidance will allow the government to betterevaluate the benefits of reducing pollution exposures
The Failed Federalism of Affordable Housing: Why States Don\u27t Use Housing Vouchers
No full textThis Article uncovers a critical disjuncture in our system of providing affordable rental housing. At the federal level, the oldest, fiercest debate in low-income housing policy is between project-based and tenant-based subsidies: should the government help build new affordable housing projects or help renters afford homes on the private market? But at the state and local levels, it is as if this debate never took place. The federal government (following most experts) employs both strategies, embracing tenant-based assistance as more cost-effective and offering tenants greater choice and mobility. But this Article shows that state and local housing voucher programs are rare, small, and limited to special populations. States and cities almost exclusively provide project-based rental assistance. They move in lockstep despite disparate market conditions and political demands: project-based spending overwhelmingly predominates in both high- and low-rent markets and in both liberal and conservative states. States have done so across decades of increased spending. This uniform subnational approach suggests an unhealthy federalism— neither efficient nor experimental. This Article further diagnoses why states have made this unusual choice, identifying four primary culprits: (1) fiscally-constrained states use project-based models to minimize painful cuts during recessions; (2) incomplete federal housing subsidies inadvertently incentivize project-based spending; (3) the interest groups involved in financing and constructing affordable housing are relatively more powerful subnationally; and (4) rental assistance’s unusual, lottery-like nature elevates the value of visible spending over cost-effectiveness. Finally, this Article points the way toward reform, offering two paths forward. Taking a federalist perspective allows for a new understanding of federal housing statutes. Better cooperative models—expanding either the federal or state role in providing affordable housing—could accept states’ limitations in providing rental assistance and exploit their strengths
Terrible Freedom, Ambiguous Authenticity, and the Pragmatism of the Endangered: Why Free Speech in Law School Gets Complicated
No full textWe idealize colleges and universities as places of unfettered inquiry, where freedom of expression flourishes. The Supreme Court has described the university classroom as “peculiarly the ‘marketplace of ideas.’” It declared: “The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, [rather] than through any kind of authoritative selection.” The exchange of competing ideas takes place not only in classrooms, but also in public spaces, dormitories, student organizations, and in countless other campus contexts
Pillar 2 and the Credits.
No full textThe international tax provisions of the Build Back Better Act (BBB) passed by the House of Representatives represent a reasonable compromise. They are consistent with the OECD’s Pillar Two statement, and they represent a significant move toward the implementation of the single tax principle (STP). In what follows, we will discuss the proposed changes and how they fit in with the new international tax regime (ITR). We will also address the possible interactions with the ITR if BBB is not enacted
Humans in the Loop
No full textFrom lethal drones to cancer diagnostics, humans are increasingly working with complex and artificially intelligent algorithms to make decisions which affect human lives, raising questions about how best to regulate these “human in the loop” systems. We make four contributions to the discourse.
First, contrary to the popular narrative, law is already profoundly and often problematically involved in governing human-in-the-loop systems: it regularly affects whether humans are retained in or removed from the loop. Second, we identify “the MABA-MABA trap,” which occurs when policymakers attempt to address concerns about algorithmic incapacities by inserting a human into decision making process. Regardless of whether the law governing these systems is old or new, inadvertent or intentional, it rarely accounts for the fact that human-machine systems are more than the sum of their parts: They raise their own problems and require their own distinct regulatory interventions.
But how to regulate for success? Our third contribution is to highlight the panoply of roles humans might be expected to play, to assist regulators in understanding and choosing among the options. For our fourth contribution, we draw on legal case studies and synthesize lessons from human factors engineering to suggest regulatory alternatives to the MABA-MABA approach. Namely, rather than carelessly placing a human in the loop, policymakers should regulate the human-in-the-loop system
Feedback Loops: Appreciators, Coaches, & Evaluators
No full textNo individual person is likely to be able to satisfy all of our feedback needs. Which is why I tell my students to assemble a “Feedback Board of Directors.” Focus in particular, I tell them, on recruiting people who can collectively provide what Douglas Stone and Sheila Heen of Harvard Law School identify as the three basic forms of feedback in their book “Thanks for the Feedback”
The Early Years of Congress’s Anti-Removal Power
No full textJudges and scholars have long debated whether the Constitution provides the President with a power to remove executive officials. The Constitution, however, undoubtedly gives Congress tools to discourage the President’s use of such power. Perhaps most notably, the Appointments Clause makes it more difficult for the President to remove principal officers—even those whose views are out of the step with the President’s—because the President cannot know whether the Senate will consent to a preferred replacement. This is an example of what we dub Congress’s anti-removal power: Even if the President can remove, a motivated Congress can discourage the President’s use of that power.
In Congress’s Anti-Removal Power, we use game theory to show why anti-removal tools are effective—viz., they increase the costs of presidential removal, resulting in less of it—and argue that such tools have been a longstanding feature of interbranch relations. In this Essay, we focus on the founding era to argue that Congress’s antiremoval power not only comports with the Constitution’s language, but also is a deliberate feature of the constitutional bargain. Not only did James Madison and Alexander Hamilton bless anti-removal tools, but early Congresses enacted statutes that discouraged removal. While the question of presidential removal attracted debate in the first Congress, the same does not appear to be true for these anti-removal features. We thus conclude—in the spirit of dogs that do not bark—that Congress’s use of its anti-removal power finds support in both the Constitution’s text and founding era thought and practice
Designing a Fulfilling Life in the Law
No full textThere is a mental health crisis in the legal profession. This isn’t news; in 2017, the National Task Force on Lawyering Well-Being acknowledged that the profession has failed to give adequate regard to the well-being of lawyers. High rates of chronic stress, depression, and substance use suggest that “the current state of lawyers’ health cannot support a profession dedicated to client service and dependent on the public trust.