Mark Seidenfeld

A Civic Republican Justification for the Bureaucratic State

Scholars have debated the legitimacy of the modern administrative state since its rise in the early twentieth century. This article argues that the political theory of civic republicanism, with its emphasis on citizen participation in government and deliberative decisionmaking, provides the best justification for the American bureaucracy. Beginning with an analysis of civic republican theory, the article notes that it promises greater citizen involvement in political decisionmaking, yet at the same time threatens to increase government power. The article finds that the current regime of administrative law neither allows for the full realization of civic republicanisms potential, nor guards against its dangers. It therefore suggests political and legal reforms applicable to the three branches of government and the bureaucracy itself.

The Psychology of Accountability and Political Review of Agency Rules

This article uses literature on the psychology accountability to evaluate the likely impact of the various forms of political review on the quality of agency decisionmaking. It begins by briefly reviewing the basic findings of psychological research regarding the impact of accountability on decisionmaking. It next applies those findings to three mechanisms of political review: OMB scrutiny of cost-benefit analyses that accompany rules, congressional committee oversight of rulemaking, and congressional fast-track review. Finally, it discusses the implications of those findings, in particular addressing the contention of some scholars that judicial review is unnecessary in light of political review, and opining on the desirability of each political review mechanism. The analysis of the accountability provided by these mechanisms for political review suggests that each mechanism is likely to have some unique impact on the behavior of agency staff members who formulate agency rules. Of the three mechanisms, OMB review holds the greatest promise for improving the quality of staff decisionmaking. OMB, review, however, also can induce the agency to formulate economically conservative rules rather than rules that promise uncertain but potentially large benefits at a certain and significant cost, or to accede to direct White House pressure for a particular outcome. Traditional congressional oversight is unlikely to improve the care of agency staff analyses or the propensity of the staff to use inappropriate decision rules and to succumb to heuristic biases because Congress cares almost exclusively about outcomes rather than the process that the agency uses to formulate rules. For this same reason, traditional congressional review might induce the agency staff to become defensive about its initial rule preference or it might cause the staff to formulate a rule more in line with the preferences of influential congresspersons - for example chairs of oversight committees. Fast track review is the least likely of the mechanisms canvassed in this article to encourage significant change in agency decisionmaking because the agency does not know in advance which rules will actually be subject to fast track scrutiny after they are promulgated. The article concludes that, overall, none of the mechanisms for political review are capable of replacing judicial review as a means of improving the quality of agency rulemaking.

The Quixotic Quest for a "Unified" Theory of the Administrative State.

This essay comments on the impact of Richard Stewart’s seminal article, “The Reformation of American Administrative Law.” It posits that the most long-lasting contribution of that article was not its primary thesis that the interest group model of the administrative state is flawed, but rather its expression of doubt that any single unifying theory could adequately explain or justify administrative law. This essay surveys attempts that scholars have made subsequent to the publication of Stewart’s article to provide an overarching theory of the administrative state and describes flaws with each of these attempts. The essay evaluates whether, in light of Stewart’s contribution doubting the adequacy of any such model, looking for such models makes sense. It concludes that despite the inevitability that such models will be flawed, they will provide those who develop administrative law with insights and ideas that at the margins will be able to improve the operation of the administrative state.

Revisiting Congressional Delegation of Interpretive Primacy as the Foundation for Chevron Deference

Although congressional delegation is the rationale used most often to justify the Chevron doctrine, most scholars who have written about this justification have recognized that it is a fiction, albeit, they claim, a useful one. In “Chevron’s Foundation,” I proposed an alternative foundation for the Chevron doctrine—a judicial self-limitation justification for Chevron deference—based on an implicit understanding of Article III that courts should not resolve cases by making policy choices where alternative means for deciding these cases exists. In this essay, I first revisit my original critique of the delegation rationale and explicitly respond to the arguments for that foundation that were published after my prior work on Chevron. Although I think that these arguments muddy the waters regarding congressional delegation by providing evidence that there are at least some cases in which Congress purposely means to grant agencies interpretive primacy, I conclude that this is still unlikely to be true with respect to most statutory ambiguities, and hence that in most cases such delegation is still a fiction. I then proceed to consider how the rejection of congressional intent to delegate interpretive primacy to agencies bears on the judicial developments in the application of Chevron that post-date my prior work.

Investments to Make Threats Credible, Rent-Seeking, and Duress

Existing literature on the contract law doctrine of duress identifies a number of tests to determine conditions under which a contract can be voided. No article provides a specific and formal economic analysis on the link between rent- seeking and the conditions under which allowing a defense of duress is wealth enhancing. This article shows that commitments made as a result of ex ante investments by threatening parties made solely for the purpose of transferring, rather than creating wealth, ought to be voidable. We discuss cases in which a test based on rent-seeking enhances efficiency where previously proposed tests do not.