Recent Articles of Interest

Steven P. Croley, Theories of RegulationIncorporating the Administrative Process, 98Colum. L. Rev. 1 (1998). In this Article, ProfessorCroley begins to bridge what he considers to be a regrettable gap between theoretical work on regulation, on the one hand, and legal-doctrinal work on theadministrative process on the other. He first demonstrates that none of four major existing theories of regulation (the Public Choice Theory, the Neopluralist Theory, the Public Interest Theory, and the Civic Republican Theory), taken on its own terms, provides either a satisfying explanation of regulatory decisionmaking or a reliable means of predicting regulatory outcomes. He then analyzes the theories taking a different approach -- by generating a set of administrative-process expectations for each theory, and then by using those expectations to test the theories against some of what is currently known about legal-process rules and participation in agency-level regulatory decisionmaking. Professor Croley argues that such evaluation not only reveals further gaps in the theories under consideration, but also begins to shed light on how theories of regulation might be reconstructed by incorporating the administrative process more explicitly and comprehensively. He furthermore argues that integrating real-world observations about the administrative process also casts doubt on strong claims about the inevitability of regulatory rent-seeking and regulatory failure.

Michael K. Forde, The White House Counsel and Whitewater: Government Lawyers and the Scope of Privileged Communications, 16 Yale L. & Pol'y Rev. 109 (1997). This Article addresses a nemesis of the Clinton administration from its inception -- the matters collectively known as Whitewater. The investigation has given rise to two prominent controversies involving attempts to review the substance of meetings between the lawyers who represent the President in his official capacity (the members of the Office of the White House Counsel) and those who represent him in his private capacity. One dispute involved a subpoena from a Senate committee, and the other involved a federal grand jury subpoena. The White House resisted both subpoenas, invoking the attorney-client privilege and the work-product doctrine. Each of these controversies raised a number of novel legal questions about the President's relationship with the lawyers in the White House Counsel as well as his private counsel. Mr. Forde argues that, despite the political pressures involved in any privilege claim by the White House, there are grounds on which the White House could make a strong legal argument in support of its privilege claims. Arguably, the notes of a meeting between the President's official and private counsel typically are protected by the attorney-client privilege and the work-product doctrine, even if these notes are shared with members of the White House staff. In addition, the executive privilege would probably also protect such communications against congressional subpoenas, although the executive privilege would almost certainly have to yield to a grand jury subpoena. Finally, although making such a claim presents certain political perils, Mr. Forde argues that there are various steps that the White House could take to improve the political viability of a privilege claim.

Lars Noah, Administrative Arm-Twisting in the Shadows of Congressional Delegations of Authority, 1997 Wis. L. Rev. 873 (1997). The typical subjects of administrative law scholarship, rulemaking and adjudication, represent only a small fraction of agency activity. "Arm-twisting" represents one broad and important category of informal agency activity. The term is used in this Article to describe a threat by an agency to impose a sanction or withhold a benefit in hopes on encouraging "voluntary" compliance with a request that the agency could not impose directly on a regulated entity. Professor Noah describes the variety of "arm-twisting" techniques available to federal regulators, in contexts ranging from licensing and government contracting to product recalls and settlements of enforcement actions. In each of these settings, agencies enjoy significant leverage over regulated entities, allowing federal officials to extract nominally voluntary concessions. Noah then draws comparisons to arm-twisting in other contexts, including land use exactions and criminal plea bargaining. After considering the unconstitutional conditions doctrine as well as judicial constraints on plea bargaining and administrative consent decrees, Noah suggests a series of possible substantive and procedural safeguards aimed at minimizing the risk of overreaching by federal regulatory officials. Because the problem often is not amenable to judicial control, Noah believes greater agency self-restraint and congressional oversight may offer the only realistic prospects for curbing improper uses of administrative arm-twisting.

Peter L. Strauss, The Courts and the Congress: Should Judges Disdain Political History?, 98 Colum. L. Rev. 242 (1998). Professor Strauss comments on the propositions set forth in an earlier article by one of his colleagues, Professor John Manning. See John F. Manning, Textualism as a Nondelegation Doctrine, 97 Colum. L. Rev. 673 (1997). Manning argued that the use of legislative materials by courts in effect permits Congress to engage in delegation of its authority to subunits of the legislature, in violation of separation of powers. Professor Strauss acknowledges that the previous generation of courts may have excessively credited the minutiae of legislative history, but responds that judicial attention to the political history of legislation is required, not forbidden, by considerations of constitutional structure. Strauss believes that only awareness of that history will promote interpretation reflective of the context and political moment of Congress's action. He asserts that our history of previous conflicts between legislature and judiciary ought to have demonstrated the hazards of a judiciary that holds itself aloof from the legislative enterprise. Both long traditions of the common law and constitutional allocations of authority counsel judges to interpret statutes with a view to adding "force and life" to the remedies legislatures adopt. Professor Strauss acknowledges that, for the reasons Professor Manning evoked, courts should not accord legal authority to individual elements of legislative history. Nonetheless, he argues, the use of political history to inform the judge's own interpretation fits comfortably within a broad range of judicial practice, and pointedly ignoring political history risks releasing the courts from separation of powers constraints equally important to their own functioning. Professor Strauss believes an intelligent, independent, and respectful attention to political history need reflect neither judicial subservience to the legislature nor, what would be as objectionable, judicial disdain for its work.

Symposium on Administrative Law, 72 Chi.-Kent L. Rev. 951 (1997). Introduction, Harold Krent, Hon. Richard A. Posner, The Rise and Fall of Administrative Law; Peter L. Strauss, Presidential Rulemaking; Cynthia R. Farina, The Consent of the Governed: Against Simple Rules For a Complex World; Thomas W. Merrill, Capture Theory and the Courts; Nicholas S. Zeppos, The Legal Profession and the Development of Administrative Law; Daniel B. Rodriguez, Jaffe's Law: an Essay on the Intellectual Underpinnings of Modern Administrative Law Theory; Harold J. Krent, Reviewing Agency Action for Inconsistency with Prior Rules and Regulations; Ronald M. Levin, The Anatomy of Chevron: Step Two Reconsidered; Edward L. Rubin, Discretion and its Discontents; Commentary: Barksdale, Yvette M., New Wine Bottles: Rethinking Political and Judicial Controls on Administration; Sanford N. Greenberg, Ironies of Administrative Law; Jim Rossi, Waivers, Flexibility, and Reviewability; Gary S. Lawson, Reconceptualizing Chevron and Discretion: a Comment on Levin and Rubin.

Twenty-Eighth Annual Administrative Law Issue, 46 Duke L.J. 1255 (1997). Gary Coglianese, Assessing Consensus: the Promise and Performance of Negotiated Rulemaking; William Funk, Bargaining Toward the New Millennium: Regulatory Negotiation and the Subversion of the Public Interest; Philip J. Harter, Fear of Commitment: an Affliction of Adolescents; Ellen Siegler, Regulatory Negotiations and Other Rulemaking Processes: Strengths and Weaknesses from an Industry Viewpoint; Hon. Patricia M. Wald, ADR and the Courts: an Update.

Federalist Society Symposium, 13 J.L. & Pol. 513 (1997). Robert H. Bork, Tenth Anniversary Banquet Speech. Panels: Disciplining Congress: The Taxing and Spending Powers, Thomas Griffith, Susan Low Bloch, David Skaggs, Donald Elliott, David McIntosh and Michael Rappaport; Reforming Government Through Oversight: A Good or Bad Idea? Edwin Meese, Theodore Olson, Christopher Schroeder and Christopher Shays; Disciplining Congress: The Boundaries of Legislative Power, A. Raymond Randolph, John McGinnis, Peter Hoekstra, Martin Redish and Daniel Troy; Relimiting Federal Judicial Power: Should Congress Play a Role? Lois Haight Herrington, Akhil Amar, Steven Calabresi, John Harrison, Steven Shapiro and John Yoo; Term Limits for Judges? Edward W. Madeira, Jr., Richard Sanders, Laurence Silberman and Charles Cooper.