Recent Articles of Interest

Celia Campbell-Mohn and John Applegate, Federal Risk Legislation: Some Guidelines, 23 Harv. Envtl. L. Rev. 93 (1999). The past three or more Congresses have seen substantial efforts to enact Arisk reform@ legislation that would require environmental, health, and safety regulations to be adopted following the performance of risk assessments modeled on quantitative risk assessment methods for carcinogens. While such a requirement has potentially beneficial effects on the quality of the resulting rules, there is also a substantial potential for mischief by reorienting substantive environmental, health, and safety regulation, and by introducing substantial new costs and delays into the regulatory process. This article, which is derived from a report by the authors to support an American Bar Association recommendation on risk legislation, presents eight guidelines that ought to be followed by such legislation were it to be adopted. The article also draws on the experience with the National Environmental Policy Act. Environmental impact statements are analogous to risk assessments in many (heretofore unrecognized) respects, especially the importance of distinguishing between a procedural, analytical tool for decisionmaking and a substantive, result-determinative element of rulemaking

Neal Devins and Michael Herz, The Battle That Never Was: Congress, The White House, and Agency Litigation Authority. 61 Law & Contemp. Probs. 205-222 (1998). This article examines the politics behind the (legislatively specified) division of litigation authority between the Justice Department and agency lawyers within the executive branch. In particular, why is it that lawyers within the executive branch care a great deal about this question while Congress cares very little about the division of litigation authority. In part, the explanation for this difference could not be more obvious. For the lawyers themselves, the allocation of authority is personal; it directly affects their power and the nature of their jobs. Nevertheless, Congress' seeming indifference to the division of litigation authority, at first glance, seems surprising. After all, courts figure prominently in governmental policymaking and, as such, the question of who speaks the government's voice seems anything but immaterial. Upon closer inspection, however, it may be that Congress' choice to invest little energy in parceling out litigation authority is sensible. Through its lawmaking and oversight powers, Congress has more powerful and direct tools for defining the scope and content of legal policymaking. In contrast, centralizing litigation authority within the Justice Department bolsters presidential control of the administrative state. Thus, as this paper shows, when litigation authority is placed against the backdrop of intensity of preferences within Congress and the Executive Branch, DOJ control of government litigation is hardly surprising..

Ernest Gellhorn and Paul Verkuil, Controlling Chevron-Based Delegations, 20 Cardozo L. Rev. 989 (1999). The generous application of Chevron and failure of the nondelegation doctrine have combined to encourage sweeping jurisdictional claims by agencies far beyond their original powers. The Food and Drug Administration asserts it is entitled to deference when asserting authority over tobacco products; the Environmental Protection Agency and the Nuclear Regulatory Commission invoke Chevron when applying civil rights criteria to issue permits or licenses; and the Federal Reserve Board relies on Chevron deference to bless non-banking activities by commercial banks. In each instance, the agency had been denied specific authority by Congress after conceding that it did not have the asserted power. None involved a mere filling of a gap left by Congress on the precise boundaries of otherwise accepted agency authority. This article urges that Chevron deference should not apply to changes in an agency=s core jurisdiction. Reviewing courts should ask whether: (i) it was likely that Congress would have expected the agency to have the claimed authority; (ii) the questioned jurisdiction is close to the agency=s core regulatory assignment; (iii) the claimed powers are consistent with the terms, structure and history of the agency=s organic act; (iv) the issue is one of relative insignificance that Congress would have intended to delegate; and (v) the agency has been granted any related regulatory assignments. .

Joshua E. Husbands, Comment, The Elusive Meaning of ASmall Business,@ J. of Small & Emerging Bus. L. 355 (1998). United States law is filled with provisions that purport to confer some aid or benefit upon small businesses. A Asmall business@ may be eligible to receive government subsidized loans through the Small Business Administration, beneficial tax treatment, relaxed filing standards under the laws governing the regulation of securities, expedited bankruptcy proceedings, and various other types of preferential treatment. Though numerous types of aid are available, a multitude of differing requirements exist under the various definitions of small business. This variety of definitions makes determining whether a business is Asmall@ something of a problem. Each organization or statute provides its own definition of what exactly constitutes a small business. These definitions often rely on different criteria as measures of size, and the size limits are not typically uniform even when the same measuring criteria are used. This Comment analyzes the different definitions of small business and discusses the possible rationale for the disparities among them.

Thomas O. McGarity, The Role of Government Attorneys in Regulatory Agency Rulemaking, 61 Law & Contemp. Prob. 19 (1998). Professor McGarity's article explores many of the roles that agency attorneys can play in the internal processes of developing proposed rules and responding to public comments on those rules. After briefly describing the two predominant models of the internal decisionmaking process from the lawyer's perspective (the "team" and "assembly line" models), the article examines how the agency lawyer functions within those models. The article identifies seven broad roles that the agency lawyer can play -- interpreter, proceduralist, scrivener, rational analyst, policy partisan, trusted confidante, and advocate for the agency. In virtually all rulemaking contexts, agency attorneys have the power to determine external procedures, to veto aspects of proposed rules that they find to be unlawful, and to demand that the technical and economic staffs come up with more persuasive rationales for their resolution of controversial issues. In many rulemaking contexts, attorneys also have the power to mold the substance of agency rules to fit their own policy preferences or what they deem to be the policy preferences of the reviewing judges. In the final analysis, however, agency lawyers are only as influential as politically accountable upper level decisionmakers allow them to be, and this usually depends upon the degree to which upper level decisionmakers trust the judgment of the particular attorneys which whom they deal on a daily basis.

Julie Roin, Reconceptualizing Unfunded Mandates and Other Regulations, 93 Northwestern U. L. Rev. 351 (1999). Both federal and state legislatures have been roundly criticized for enacting unfunded mandates (directives emanating from one level of government to a subordinate level unaccompanied by the funds necessary to implement them). Many commentators have concluded that the separation of rulemaking and funding functions leads to excessive and unwise legislation; some go further and suggest that most unfunded mandates can be explained as a form of deliberate voter deception. This article explores the uneasy case against and for unfunded mandates in light of the wider literature on cost internalization. By comparing unfunded mandates to alternative institutional arrangements such as fully funded mandates and complete privatization, it reveals the inherent trade-offs involved in local administration of centrally dictated priorities. Such trade-offs exist with, but are hardly unique to, unfunded mandates. The article concludes that, in some situations, political process and agency cost concerns actually favor unfunded mandates over alternative institutional arrangements. It then posits that distributional concerns -- concerns arising from the nondeductibility of many sources of federal and state revenues -- may provide an alternative grounds for discomfort with unfunded mandates.

Cass R. Sunstein, Informational Regulation and Informational Standing: Akins and Beyond, 147 U. Penn. L. Rev. 613 (1999). This article explores informational regulation and informational standing, especially in the wake of FEC v. Akins, 118 S. Ct. 1777 (1998). It traces the rise of information disclosure as a regulatory tool, contrasting command-and-control regulation and economic incentives; it also outlines the circumstances in which informational regulation is likely to fail and to work. Exploring the complex body of law involving informational standing, the article suggests that the key question is whether Congress has given a right to bring suit -- and also that Akins, for the first time in the years since the wrong turn in Data Processing, confirms this point. It also explores the zone of interests and generalized injury tests after Akins and shows how Akins significantly reorients the law of redressability and injury in fact. Finally, the article offers a set of hypothetical cases by which to test the reach of Akins and the future law of informational standing, with some lessons for the future law of standing and "injury in fact" in general

Government Lawyering, 61 Law & Contemp. Probs. 1 (1998). Neal Devins, Foreword; Government Lawyers Shaping Law and Policy: Peter H. Schuck, Lawyers and Policymakers in Government; Thomas O. McGarity, The Role of Government Attorneys in Regulatory Agency Rulemaking; Roberta S. Karmel, Creating Law at the Securities and Exchange Commission: The Lawyer as Prosecutor; Dan M. Kahan, Reallocating Interpretive Criminal-Lawmaking Power Within the Executive Branch; Steven G. Calabresi, The President, the Supreme Court, and the Constitution: A Brief Positive Account of the Role of Government Lawyers in the Development of Constitutional Law; Michael Stokes Paulsen, Hell, Handbaskets, and Government Lawyers: The Duty of Loyalty and Its Limits; Litigating on Behalf of the United States: Patricia M. Wald, AFor the United States@: Government Lawyers in Court; H.W. Perry, Jr., United States Attorneys CWhom Shall They Serve?; William Michael Treanor, Independent Counsel and Vigorous Investigation and Prosecution; David A. Strauss, The Solicitor General and the Interests of the United States; Jeremy A. Rabkin, The Secret Life of the Private Attorney General; Neal Devins and Michael Herz, The Battle That Never Was: Congress, the White House, and Agency Litigation Authority; Government Lawyers for the Congress: John C. Yoo, Lawyers in Congress; Michael J. Glennon, Who=s the Client? Legislative Lawyering Through the Rear-View Mirror; Kathleen Clark, The Ethics of Representing Elected Representatives; Charles Tiefer, The Senate and House Counsel Offices: Dilemmas of Representing in Court the Institutional Congressional Client; Government Lawyers for the Executive Branch: Nelson Lund, The President as Client and the Ethics of the President=s Lawyers; Thomas W. Merrill, High-Level, ATenured@ Lawyers; Jonathan R. Macey, Lawyers in Agencies: Economics, Social Psychology, and Process; Michael K. Young, The Role of the Attorney-Adviser in the U.S. Department of State: Institutional Arrangements and Structural Imperatives; Peter L. Strauss, The Internal Relations of Government: Cautionary Tales from Inside the Black Box; Nicholas S. Zeppos, Department of Justice Litigation: Externalizing Costs and Searching for Subsidies.