Stephenson on Choosing Between Agencies and Courts:
In the latest issue of the Harvard Law Review, Matthew Stephenson has a very interesting article on lawmaking by courts vs. agencies: Legislative Allocation of Delegated Power: Uncertainty, Risk, and the Choice Between Agencies and Courts (.pdf). Here is the abstract:
  When a legislature delegates the authority to interpret and implement a general statutory scheme, the legislature must choose the institution to which it will delegate this power. Perhaps the most basic decision a legislature makes in this regard is whether to delegate primary interpretive authority to an administrative agency or to the judiciary. Understanding the conditions under which a rational legislator would prefer delegation to agencies rather than courts, and vice versa, has important implications for both the positive study of legislative behavior and the normative evaluation of legal doctrine; the factors that influence this choice, however, are not well understood. This Article addresses this issue by formally modeling the decision calculus of a rational, risk-averse legislator who must choose between delegation to an agency and delegation to a court. The model emphasizes an institutional difference between agencies and courts that the extant literature has generally neglected: agency decisions tend to be ideologically consistent across issues but variable over time, while court decisions tend to be ideologically heterogeneous across issues but stable over time. For the legislator, then, delegation to agencies purchases intertemporal risk diversification and interissue consistency at the price of intertemporal inconsistency and a lack of risk diversification across issues, while delegation to courts involves the opposite tradeoff. From this basic insight, the model derives comparative predictions regarding the conditions under which rational legislators would prefer delegating to agencies or to courts.
  Adrian Vermeule comments here.
Mary Katherine Day-Petrano (mail):
I have dealt with these issues a lot. One of the most interesting issues is how the DOJ and EEOC could have complied with Chevron with respect to promulgation of regulations implementing the Americans With Disabilities Act without requiring initial contact with all Title I employers, Title II public entities, Title III places of public accommodation, and the enforcement federal agencies to request necessary reasonable accommodations be authorized by oral-spoken methods (and not in written format).

This simple bug in the ADA has the effect of excluding thousands in entire classes of the disabled who can only communicate by oral-spoken methods absent a scribe, amanuensis, or speech recognition device. Nowhere in the ADA did Congress evidence any intent whatsoever to exclude large swaths of the disabled from the protection of the Act by the regulatory fiat.

And, interestingly, a Rehabilitation Act of 1973 claim can lie against the federal agencies for this exclusionary problem, iincluding for failure under the notice and comments requirements of federal rulemaking to make oral-spoken communication methods accessible to make such comments.

All resoundingly raising First Amendment concerns.

Take from someone who talks a lot but can't write worth a hoot.
3.8.2006 4:18pm
Mary Katherine Day-Petrano (mail):
"I have dealt with these issues a lot. One of the most interesting issues is how the DOJ and EEOC could have complied with Chevron with respect to promulgation of regulations implementing the Americans With Disabilities Act without requiring initial contact with all Title I employers, Title II public entities, Title III places of public accommodation, and the enforcement federal agencies to request necessary reasonable accommodations be authorized by oral-spoken methods (and not in written format)."

I meant without requiring the initial contact to request reasonable accommodations to be made in writing, rather than oral-spoken. some people are completely locked out at the outset because the requirement to ask for oral-spoken communications methods by submitting the request in writing is an impossible obstacle to surmount. Duh. A no-brainer, but most non-disabled people don't get it.
3.8.2006 4:21pm
Mary Katherine Day-Petrano (mail):
Since I have by now probably hopelessly confused everyone, I will give an example. Defendant A goes to the traffic bureau clerk to request a hearing to dispute a ticket. Defendant A can only perform oral-cpoken communications absent a scribe, amanuensis, or speech recognition reasonable accommdoation being provided by the Court. Defendant A requests the clerk provide such accommdoation to accomplish many things, like enter a not guilty plea, subpoena witnesses, make a motion to dismiss, etc. The clerk replies, "well, you will have to submit your request in writing." Defendant A explains he or she cannot accomplish this without the accommodation being provided to place the request for accommodation in written format. The clerk becomes angry, refusing to deal with Defendant A. The necessary oral-spoken scribe, amanuensis, or speech recognition accommdoations are never provided. Defendant A is thereby forced to go through a trial, appeals, and ultimately is convicted and the judgment becomes final while Defendant A is never once able to exercise any Constitutional rights to mount a defense to seek meaningful review. Important rights are lost.

This example is happening every day in the 50 States' trial courts for the simple no-brainer reason that the DOJ failed to promulgate regulations requiring the public entity courts to take initial reasonable accommdoations requests for oral-spoken communication accommodations (scribes, amanuenses, speech recognition) by oral-spoken methods.

How can such an obvious First Amendment, Due Process, and Equal Protection violation of such magnitude go completely unredressed?
3.8.2006 4:29pm
Ciarand Denlane (mail):
Mary Katherine: I'm not sure I understand how the problem you describe is illustrative of what I take to be Stephenson's thesis. I'll assume that the issue you describe is, on the merits, close enough that it could be resolved either way (I don't know enough to assume otherwise, but that you would decide it one way and DOJ has decided it the other, makes the close-question hypothesis somewhat plausible). If this is so, then the "intertemporal risk diversification" that Stephenson is said to theorize is an advantage of delegating to an agency would, one would have thought, have increased the chance that sooner or later DOJ would have gotten it right. I'm not sure I'll agree with what I gather are Stephenson's views that agency decisionmaking does provide substantial intertemporal risk diversification -- inertia is a force I try not to underestimate -- but I'm open to being persuaded.
3.8.2006 5:57pm
Harriet Miers' Law Partner:
I haven't read the entire article, but the synopsis seems to ignore a primary reason the legislature delegates to an agency: legislative control of purse and appointment (thru confirmation) of the agency gives the legislator a greater comfort level that delegating to judges. This is a huge issue at the state level, which is never studied much by academics.
3.8.2006 5:57pm
Cornellian (mail):
If we accept a basic Federalist premise that each branch seeks to maximize its power at the expense of the others, and given the Constitutional, separation of powers constraints that prevent Congress from running things directly, perhaps allocation to agencies rather than courts will inevitably increase over the long term because Congress can threaten, badger and cajole agencies to a greater extent than it can threaten, badger and cajole Article III courts. This would explain why Congress is willing to delegate so much law making power to the Executive branch. They're not really giving up power at all, but rather accumulating it.
3.8.2006 7:49pm
Speaking of pompous usage:

formally modeling the decision calculus of a rational,

Maybe the author was passing stones and that was the reason for the usage.
3.9.2006 1:05am
Mary Katherine Day-Petrano (mail):
"said to theorize is an advantage of delegating to an agency would, one would have thought, have increased the chance that sooner or later DOJ would have gotten it right."

No, DOJ cannot "get it right" until they bring enforcement action against (1) State Bar Examiners, (2) standardized testing that only enriches private companies like BarBri, Kaplan, Washington Post, while excluding autistics and learning disabled (3) federal agency employers, including an introspective examination of pratices at the DOJ, themselves, to see that the foregoing enforcement failures result in only 'think inside the standardized box of mediocrity' non-disabled people being hired at DOJ (and other federal agencies) who lack first hand personal experience in what it is like to be, say, autistic with a different brain structure. To make it more clear to you, one cannot force a square peg into a round hole. This has led to almost the complete absence of people like autistics or TBI disabled people being employed by agencies like DOJ; hence, absent affirmative action to ensure a critical mass of autistics/learning disabled/TBI, and others with different brain wiring for whom the foregoing standardized screening methods fail, DOJ will never "get it right." You can't "get right" what you don't understand.

How many people does it take to screw in a light bulb? About the same number it takes to see that people missing arms, quadraplegics, and autistics/learning disabled people can only effectively communicate in the first instance by oral-spoken methods to acquire the "equipment and devices" to use the lingo of the ADA regulations necessary to communicate their postures, commentary, and suggestions for DOJ to "get it right" in writing. As Governor Jeb Bush says in Florida under Florida's e-IT implementation, such people are completely "locked out."

Autistics, in particular, will never excel or even pass standardized testing. And until DOJ "gets this right" and requires alternative assessment waiver measures to all standardized tests, along with promulgation of a regulation to require all State and Federal agencies and Courts to intake a reasonable accommodation requests for such "equipment and devices" mandatory under the ADA by oral-spoken methods, an entire class of oral-spoken communication disabled people will be doomed to no equal opportunity anywhere and excluson everywhere.

And at a taxpayer cost to you of almost $3 M over the lifetime of an autistic (of every 1 in 166 people born in America) to warehouse people among whose ranks of productivity have otherwise included such geniuses as Thomas Jefferson, Albert Einstein, and Amadeus Motzart. All thinkers outside the stardardized box. Or do you contend they are worthless?

You can use all the fancy words you like, but that in itself adds support to all that is wrong with Congressional delegation to agencies to rulemake as they have to implement the ADA and Rehabilitiation Act of 1973 -- do you realize the ADA, for one statutory scheme, requires effective communication including the use of much more simple, clear, and literal language than that by which you speak?

But the bottom line you miss under all your fancy words is the basic general rule that agency rulemaking cannot conflict with or exceed the statutory command. Take Title II of the ADA, 42 USC Sec. 12132. That statute is all inclusive of even the disabled who must communicate in the first instance by oral-spoken methods, since there is no limiting language on the plain face of the statute, and civil rights remedial statutes are broadly construed to effectuate their purpose.

So where does your assertion that DOJ will eventually "get it" fnd any support in fact or law? That is a clearly rhetorically answerable question, given the foregoing lack of any peer representation in DOJ hiring practices and criteria for qualified individuals with oral-spoken/written communication disabilities such as autistics. Can you prove there is even one autistic in the employ of the DOJ or White House legal staff?

Take myself, if a United States Attorney in Tampa says I am highly skilled in the law, why should I be excluded from bar admission and federal employment by solely by reason of my disability and other hiring criteria that have the effect of screening me out based on immutable charactersitics of my disability and the failure to require oral-spoken methods, "equipment and devices," and alternative assessment waivers to standardized examinations and forms? You're notion of the DOJ will eventually "get it," is like waiting for the State of Tennessee to build wheelchair ramps to enter its State Courthouses; Hell will sooner freeze over.

No peer representation in DOJ, no critical mass = no chance DOJ will ever "get it." And if I am wrong, then I would expect to see DOJ immediately promulgate such a regulation along with a time period in which such excluded oral-spoken/written communication disabled people can submit retroactive claims under the ADA and Rehabilitation Act of 1973 going back to the effective dates of both Acts -- and demonstrable vigorous enforcement by the DOJ of all such claims.

History, however, unfortunately, will prove I am right, since DOJ will never do this, proving they will never "get it," and autistics will continue to be denied the same hopes, dreams, and equality as most normal people take for granted every day.
3.9.2006 1:31pm
A. Nonymous (mail):
A related queston that gets little to no attention: what happens when the court is an agency?

I speak of those instances where a state's Supreme Court has a statuatory or constitutional mandate to exercise "general administration" of the court system, subject to laws laid out by the legislature. In a modified form, the individual courts' presiding judge may do the same on a more limited scale and subject to the will and whim of the state's Supreme Court or the Chief Justice thereof (depends on the state).

The big tripping point is where the legislature can exercise discretion by passing laws over an "agency act" but cannot pass a similar law when it comes to the internal workings of another branch. Oh sure, the legislature could try to pass a law mandating the courts in say employment practices do certain things. In the past, it occured all the time with clerks being picked by the other branches even for political considerations.

Modern day courts, however, would simply ignore it or declare it unconstitutional as a seperation of powers argument or, in a modified version, that it infringes too greatly on the "inherent powers" of the courts to be open and function for the administration of justice.

Is the judiciary an agency or a branch of government? Or rather, when is it one but not the other?
3.9.2006 1:49pm
Ciarand Denlane (mail):
Mary Katherine:

I guess I must not have expressed myself very clearly. I was not disagreeing with (or agreeing with) the particular question of statutory construction that you address. I was instead trying to ask how it relates to Professor Stephenson's thesis, about which I expressed open-to-being-persuaded-otherwise skepticism.
3.11.2006 1:32pm