Kathleen Bawn, Choosing Strategies to Control the Bureaucracy: Statutory Constraints, Oversight, and the Committee System, 13 J. L. Econ. & Org. 101 (1997). Ms. Bawn believes the most important questions in the study of democratic institutions have to do with how the preferences and welfare of citizens are translated into the policies and laws of the government. What groups in society have the most influence on government decision makers? Which groups of government officials (elected and unelected) have the most influence on policy? She proposes that Congress exerts more influence over agency decisions than has previously been appreciated through agency oversight and statutory control. This influence is important because of its possible implication about which groups in society are ultimately helped or hurt by governmental policy. To answer this question, Ms. Bawn integrates the issue of legislative control of the bureaucracy with the internal organization of Congress and the relationship between legislators and constituents. She takes a step toward this integration by examining how individual legislators' incentives to use each control strategy are affected by the political environment and their position within the legislature. She makes predictions about who within Congress is most likely to influence agency policy decisions and under what circumstances. Her most important prediction is that legislators who are not members of the standing committee with jurisdiction in the agency's policy area prefer a higher level of statutory control than committee members. Ms. Bawn tests this prediction using data from two laws that delegated power to the EPA.

David M. Driesen, The Societal Cost of Environmental Regulation: Beyond Administrative Cost-Benefit Analysis, 24 Ecology L.Q. 545 (1997). This article addresses the question whether administrative agency reliance on cost-benefit criteria theoretically makes good economic sense in the environmental law context. Many scholars assume that administrative use of cost-benefit criteria produces more economically rational outcomes than the traditional "polluter pays" principle. Most critics of "regulatory analysis" have focused on the practical difficulty of giving appropriate weight to environmental values in cost-benefit analysis rather than the economic rationale for relying upon it. Professor Driesen questions the assumption that cost-benefit criteria has a theoretically coherent and compelling economic rationale. He argues that increased emphasis on cost-benefit criteria will probably hamper achievement of the important economic goals having to do with the economy's long-term ability to grow and employ people. Cost-benefit analysis exacerbates tendencies to focus myopically on short-term costs to regulated companies, even when imposition of costs upon them may economically benefit their workers and/or competitors in the short-term and society in the long term. Driesen recommends that Congress consider cost-benefit analysis when it revises statutes, but that it not require cost-benefit analysis in administrative rulemaking. He advocates a reorientation of environmental policy to create a long-term economic dynamic likely to encourage innovation that will spur economic growth and improve environmental quality. Professor Driesen also argues that environmental policy should focus less on momentary ratios of costs and benefit and more on our long-term economic and environmental well being.

Jan Laitos, Legislative Retroactivity, 52 Washington Univ. Journal of Urban and Contemporary Law 81 (1997). One recurrent issue with new statutes is that they often affect either past legal relationships or decisions made by private parties in reliance on prior existing law. If a new statute applies retroactively, it may alter or impair these past events. This article considers the problem of retroactivity, and proposes a new way of thinking about nonpenal legislative retroactivity. In the past several years, the U.S. Supreme Court has decided several cases involving retroactivity issues. See, e.g., Landgraf v. USI Film Prods., 511 U.S. 244 (1994); Rivers v. Roadway Express, Inc., 511 U.S. 298 (1994); Hughes Aircraft Co. v. United States v. Schumer, 117 S. Ct. 1871 (1997). In 1998, the U.S. Supreme Court will decide another important retroactivity case -- Eastern Enterprises v. Chater, 110 F. 3d 150 (1st Cir. 1997), that addresses whether retroactive liability for retiree health benefits under a 1992 federal statute violates the Due Process Clause. The article suggests that retroactive legislation should be classified according to how it alters the temporal legal consequences of past and present private actions. Adoption of this proposed classification system would term the most common type of retroactive legislation as "secondary retroactivity," which is where the legal consequences of past private actions are altered only in the future. "Primary retroactivity" defines laws that alter the past legal consequences of past private actions. The article argues that legislation should not apply retroactively in one of three situations. First, statutes that apply with primary retroactivity are usually invalid. See, e.g., Plaut v. Spendthrift Farm Inc., 115 S .Ct. 1447, 1456 (1995). Second, if a statute applies with secondary retroactivity, the Supreme Court's Landgraf decison imposes a presumption of prospectivity, which can only be rebutted by express legislative intent. Third, even when legislative intent rebuts the Landgraf presumption of prospectivity, the article points out that secondary retroactivity is invalid when pre-enactment conduct has attained "protected legal status." Such proteced status is present when various constitutional provisions or equitable principles immunize the conduct from secondary retroactivity.

Dale A. Nance, Guidance Rules and Enforcement Rules: A Better View of the Cathedral, 83 Va. L. Rev. 837 (1997). In this article, Professor Nance reexamines the Calabresi and Melamed typology of legal rules, which he believes is flawed in a fundamental way. Ultimately, he believes the flaw can be attributed to the authors' failure to appreciate a distinction long recognized in the work of the "macro" legal theorists -- the distinction between guidance rules and enforcement rules. His article starts by reexamining the typology presented by Calabresi and Melamed, identifying an important ambiguity in their scheme and explaining the best way to resolve that ambiguity. He believes the key is to identify their rule types as guidance rules rather than enforcement rules, exactly the opposite of the prevailing view. He relates this result to the distinction between a price and a sanction, illustrating the untoward consequences of conflating the guidance and enforcement functions. Professor Nance also discusses the contribution of Jules Coleman and Jody Kraus and presents another possible resolution of Calabresi and Melamed's ambiguity. He further demonstrates the importance of the distinction between guidance rules and enforcement rules by illustrating certain features of the analysis of legal norms that tend to be masked by the usual understanding of Calabresi and Melamed's framework. What results is an enriched typology that distinguishes between rules for the guidance of the law-abiding citizen and rules for the enforcement of such guidance rules against the not-so-law-abiding. The resulting perspective complements similar work by Professors Coleman and Kraus and sheds additional light on the distinctions between tort and crime and between distributive and corrective justice.

Richard J. Pierce, Jr., Reconciling Chevron and Stare Decisis, 85 Georgetown L.J. 2225 (1997). The prelude to Professor Pierce's article is the Supreme Court's 1984 decision in Chevron USA, Inc. v. Natural Resources Defense Council, Inc. a nd its upset of the doctrine of stare decisis. The two-step test enunciated in Chevron and the doctrine of stare decisis have the potential to yield inconsistent results in a variety of contexts. Conflicts can arise between Chevron and both pre-Chevron and post-Chevron precedents. Conflicts can also arise between Chevron and precedents announced by three different institutions: the Supreme Court, circuit courts, and agencies. Lastly, conflicts can arise between precedents and either Chevron step one or Chevron step two. Professor Pierce critiques the ways in which courts have attempted to reconcile the Chevron and stare decisis doctrines to date and suggests alternative methods of integrating these doctrines that would produce better results, as measured with reference to the values that underlie the two doctrines. He describes the Chevron and stare decisis doctrines, the attributes of each, and the relevance of the arguments scholars have made in favor of stare decisis in administrative lawmaking. Pierce also describes cases in which courts have attempted to reconcile the two doctrines in various contexts. He suggests a new analytical framework for attempting to maximize simultaneously the values that are furthered by the two doctrines and the conflict-resolving or conflict avoiding rules that logically follow from application of that framework in the many contexts in which Chevron and stare decisis seem to require different results. Professor Pierce argues that circuit courts have identified and applied methods of reconciling the values of Chevron and stare decisis in several important contexts that are superior to the mechanical rules that the Supreme Court has generally adopted to date.

Michael B. Rappaport, Veto Burdens and the Line Item Veto Act, 91 Nw. U. L. Rev. 771 (1997). Professor Rappaport addresses what he believes are problems with the Line Item Veto Act of 1996 (Act). Although the Constitution specifically limits the President's veto power to an entire bill, the Act enables the President to avoid this limitation by augmenting his power to reject individual spending items. Congress wanted to permit the President to veto individual spending items in a bill while approving the remainder of the measure, but because the Constitution prohibits Congress from passing legislation authorizing the President to veto individual spending items, Congress was forced to provide a substitute for the item veto. Thus, the Act allows the President to decline to enforce, or as the Act terms it, to cancel individual spending items in a statute that he has signed. The Act also contains a provision that reduces the power of the veto. Under the Act, the President receives the authority to cancel spending items only if he signs the bill that contains these items. If the President vetoes a spending bill and Congress overrides his veto, the President cannot then cancel items in the resulting spending law. Although the President might prefer to veto a bill, he may sign it to preclude the possibility that Congress will override his veto and leave him without the authority to cancel individual spending items. This is a "veto burden," by providing the President with a statutory provision that he desires, such as cancellation authority, if he signs a bill, while depriving him of that provision if he vetoes the bill and Congress overrides his veto. Professor Rappaport argues that all veto burdens are unconstitutional for two reasons. First, veto burdens abridge the President's veto power by enabling Congress to exercise additional leverage over the President's decision whether to veto a bill. Because the veto was intended as a check on the legislature, Congress should not be allowed to undermine that check. Second, veto burdens unconstitutionally delegate power to the President. The Act, for example, delegates to the President the decision whether he should have cancellation authority over a spending law. Under the Act, the President confers cancellation authority on himself if he signs a spending bill, but deprives himself of cancellation authority if he vetoes the bill and his veto is overridden.

Frank K. Upham, Privatized Regulation: Japanese Regulatory Style in Comparative and International Perspective, 20 Fordham Int'l L.J. 396 (1996). Professor Upham's article proposes a model of Japanese economic regulation. It argues that Japanese regulators delegate part or most of their power to private parties to a degree and in a manner unanticipated in the literature on either Japan or regulation in general. His article presents a detailed study of this mode of regulation in the retailing industry and follows with briefer treatments of regulation in several other sectors to determine the variations and limitations of the model. Although he makes no claim of universality for the model, the author believes that the delegation of public power described in his article is not exclusive to these areas and that it represents a common style of regulation in Japan. Professor Upham also examines the structure and legal nature of government intervention in the market and the relationship between the formal legal system and the exercise of power by the Japanese bureaucracy. The analysis of Japanese regulation begins with a close look at the structure and implementation of the Large Scale Retail Stores Law (LSRSL) by the Ministry of International Trade and Industry (MITI). The LSRSL and its implementation are representative of Japanese agency practice, and their detailed description aids in forming preliminary generalizations about the legal nature and explanations for the delegation of power to private parties that this Professor Upham argues comprises Japanese regulatory style. To confirm the representative nature of administrative practice under the LSRSL and to provide additional breadth to the analysis, Upham next looks at instances of delegation in several other areas of bureaucratic practice from MITI supervision of structural adjustment under declining industries statutes to the granting of broadcast licenses by the Ministry of Posts and Telecommunications (MPT). Upham draws on U.S. administrative law norms and European regulatory theory to refine the model of privatized regulation that emerges earlier in his article. In his conclusion, he assesses the likelihood that recent legal and political changes in Japan and growing international pressures for transparency in domestic administrative processes will lead to changes in Japanese regulatory style in the near future.

Panel Discussion presented by the American Bar Association's Election Law Committee of the Section on Administrative Law and Regulatory Practice: Revolutionizing Campaign Finance -- An Appraisal of Proposed Reforms, 13 J. of Law & Politics 163 (1997). This article consists of the edited transcript of a Section program presented on May 3, 1996, involving Trevor Potter, Election Law Committee chair and former Federal Elections Commissioner; Lillian BeVier, Professor of Law at the University of Virginia; Donald Simon, General Counsel of Common Cause; Steven Stockmeyer, Executive Vice President, National Association of Business Political Action Committees; William Thomas, member of the U.S. House of Representatives (R-Cal.).