FACTS An officer in Midvale, Utah was doing some paperwork in his patrol car when he was approached by man, later identified as Nitokalisi Fonua (hereinafter, “Nick”). Nick “looked suspicious,” mainly because he was “jittery, looking around and appeared to be very nervous.” Nick’s suspicion rating jumped dramatically when, for no apparent reason, he informed the officer he had stolen a white GMC Blazer, which he had parked nearby. Naturally, the officer asked Nick if he would show him the Blazer, and Nick said sure. When they located the Blazer, the officer walked over and looked inside. The first thing he saw was a sawed-off shotgun on the back seat. Then he noticed some markings on the shotgun, “markings that looked gang-related.” Nick told the officer that the key to the Blazer was inside his motel room at the Days Inn. Also in the room, he said, were his “cousins,” meaning “people he knows from the streets.” The officer asked Nick “if we could obtain the keys to the vehicle so we could turn those back over to the owner.” Nick said the keys “were in the room somewhere” and that he “didn’t care” if the officer went in and retrieved them. Nick also gave the officer his key to the room. When backup arrived at the motel, officers knocked on the door which was opened by a man named Vake. There were two other occupants: a woman and Kimoana, the defendant. By this time, the officers were aware that Kimoana—not Nick—had rented the room. The first thing the officers saw as the door opened was the woman pointing “an unidentified black object” at the wall. Concerned for their safety, they ordered the occupants to “show their hands.” Then they pat searched them. Finding no weapons (the “unidentified black object” was a television remote control), they holstered their guns. Although the officers already had Nick’s consent to search the room, they sought and obtained consent from Vake. During the search, they found a “long-barreled revolver” under a mattress. As the result, Kimoana was convicted of being a felon in possession of a firearm.

United States V. _____

A central notion of performance management reform is that outcome-based accountability should be accompanied by increased managerial authority, thereby granting managers the flexibility to engineer performance-oriented change. Studies have revealed, however, that managerial authority does not follow automatically when performance management is adopted. This paper examines whether increased managerial authority does indeed promote the effectiveness of performance management. The paper relies on a 4-year Danish school panel on management and the performance of more than 45,000 students, including detailed socio-economic controls, which allows for a powerful differences-in-differences design. Unlike previous studies, this data provides simultaneous variation in both performance management reform and managerial authority. Testing four dimensions of managerial authority, the paper finds that managerial authority over human resources positively moderates the effect of performance management, whereas decentralizing goal setting works in the opposite direction. These findings may help account for the differing effects of performance management found in previous studies and suggest that decision-makers should be cautious about only partially adopting accountability-based reform.

Does 'Letting Managers Manage' Work? Performance Management, Managerial Authority, and Public Service Performance

Institutionalized advisory systems: An analysis of member satisfaction of advice production and use across 9 strategic advisory councils in Flanders (Belgium)

Expert groups in the European Union: A sui generis phenomenon?

A sustainable livestock economy depends on both production and consumption, inextricably linked in local, national and global markets. At each scale, technical innovation and production practices need to respond to evolving demand for both market and non-market attributes of livestock systems. This review considers recent and evolving demand-side challenges focussing on emerging preferences related to environmental, dietary and health impacts, arising from both production and consumption. It suggests that these attributes need to be integral to any definition of high-producing animal systems. This discussion is mostly framed using neoclassical economic theory, which highlights market failure and the role of negative and positive external effects or social costs. It examines how our understanding of the demand for these attributes is evolving, leading to market segmentation in some cases, and an existential threat to livestock production as consumption decisions change, investors seek to avoid potential liabilities related to greenhouse gas emissions and potentially antimicrobial resistance, and governments intervene to control other undesirable social costs. The discussion distinguishes between market imperatives in high- and lower-income countries, and how income and consumption trajectories may be less deterministic in a more hyperlinked world where product information may accelerate the evolution of preferences towards and away from livestock products. The review acknowledges the limits of a neoclassical approach, drawing attention to more fundamental concepts of biophysical limits to growth and value pluralism, which indicates values (e.g. intrinsic) that lie beyond the neoclassical framing of demand and value.

Review: Sustainable livestock systems: anticipating demand-side challenges.

Government officials who run administrative agencies must make countless decisions every day about what issues and work to prioritize. These agenda-setting decisions hold enormous implications for the shape of law and public policy, but they have received remarkably little attention by either administrative law scholars or social scientists who study the bureaucracy. Existing research offers few insights about the institutions, norms, and inputs that shape and constrain agency discretion over their agendas or about the strategies that officials employ in choosing to elevate certain issues while putting others on the back burner. In this article, we advance the study of agency agenda-setting by offering concepts and frameworks that emerged from a Penn Program on Regulation workshop we organized at which more than two dozen leading scholars, practitioners, and government official discussed the relatively hidden world of agency agendas. Addressing the concept of agenda-setting itself, we distinguish between mandatory and discretionary agendas as well as between agenda-setting over high-salience regulatory initiatives versus workaday regulatory activities. We also recount what workshop participants shared about the influence of courts, Congress, the White House, and interest groups over administrative agendas. Finally, we consider a variety of possible reforms that might make agency agenda-setting more democratic, open, and responsive. Overall, we show that agency agenda-setting, notwithstanding its relative opacity, is a distinctive and important process that warrants greater study by legal and empirical scholars.

/pdf/agenda-setting-in-the-regulatory-state-theory-and-evidence-4erlirm3sh.pdf

Agenda-Setting in the Regulatory State: Theory and Evidence

The nondelegation doctrine theoretically limits Congress’s ability to delegate legislative powers to the executive agencies that make up the modern administrative state. Yet, in practice, the Supreme Court has, since the New Deal, shied away from enforcing any limits on congressional delegation. That may all change in the near future. In Gundy v. United States, the Court narrowly upheld a delegation, and a dissent signaled deep doubts about the Court’s longstanding “intelligible principle” standard and offered a new framework to replace it. Subsequent events strongly suggest that the Court is poised to move in the direction contemplated by the dissent in Gundy, drawing a line between policy discretion, which cannot be delegated, and authority to fill in details or find facts triggering policies, which can. Whether observers’ view of the prospect of Court-imposed limits on delegation is apocalyptic or euphoric, virtually everyone expects it to be highly consequential. 

While these opinions about the nondelegation doctrine are understandable, they are ultimately speculative. This article offers a more data-driven evaluation of what implementation of the Gundy dissent’s line drawing would portend for administrative law. Using the underexamined laboratory of the nondelegation doctrine in the states, where the doctrine has always had more life than at the federal level, I show that states that adhere closely to the lines drawn by the Gundy dissent are no more or less likely to invalidate statutes passed by state legislatures than are states that adhere to the intelligible principle formulation. The lack of a relationship between doctrinal formulation and outcomes suggests we will only know whether a revolution is afoot based on what the Court actually does over a series of cases, not in what it says it is going to do. Moreover, it suggests significant limitations in the ability of the Gundy dissent’s approach to provide any ex ante guidance to Congress, the lower courts, or even future Supreme Courts about what the nondelegation doctrine prohibits—an observation that suggests significant logistical and institutional problems inherent in the entire project of resuscitating the doctrine.

Decoding Nondelegation After Gundy: What the Experience in State Courts Tells Us About What to Expect When We’re Expecting

Auer deference holds that reviewing courts should defer to agencies when the latter interpret their own preexisting regulations. This doctrine relieves pressure on agencies to undergo costly notice-and-comment rulemaking each time interpretation of existing regulations is necessary. But according to some leading scholars and jurists, the doctrine actually encourages agencies to promulgate vague rules in the first instance, augmenting agency power and violating core separation of powers norms in the process. The claim that Auer perversely encourages agencies to “self-delegate”—that is, to create vague rules that can later be informally interpreted by agencies with latitude due to judicial deference—has helped to persuade the Supreme Court to take up this term the question of whether to overturn the doctrine. Yet, surprisingly, the self-delegation thesis has never been tested.

This Article scrutinizes the thesis empirically, using an original and extensive dataset of the texts of federal rules from 1982 to 2016. My linguistic analysis reveals that agencies did not measurably increase the vagueness of their writing in response to Auer. If anything, rule writing arguably became more specific over time, at least by one measure, despite Auer’s increasing prominence.

These findings run against common wisdom, but they should not be at all surprising. The self-delegation thesis depends on a model of agency behavior that is inconsistent with what is known about the institutional pressures and cognitive horizons that cause agencies to pursue clarity in rule writing. By revealing the failures of theoretical predictions about Auer, this Article more generally draws attention to the need to test behavioral theories of administrative law against empirical reality before unsettling settled law.

The Self-Delegation False Alarm: Analyzing Auer Deference's Effect on Agency Rules

/pdf/the-self-delegation-false-alarm-analyzing-auer-deference-s-301tvmw3r8.pdf

ABSTRACT. The Supreme Court has rooted recent attacks on the administrative state in its asserted effort to increase democratic accountability, or accountability to elected officials, whether the President or Congress. Daniel E. Walters’s Article, The Administrative Agon: A Democratic Theory for a Conflictual Regulatory State, posits a different democratic justification for the administrative state, one celebrating rather than dismissing political conflict. Walters does not, however, demonstrate how that vision is compatible with the version of democracy that the U.S. Constitution itself puts forth. This Response fills that gap, highlighting the ways in which the Constitution celebrates aspects of democracy that do not fit neatly within the model of majoritarian elections. Focusing in particular on the jury system, the protections for petition and assembly, and the references to the general welfare, this Response opens space for nonelectoral democratic defenses of the administrative state, including agonism.

A RESPONSE TO The Administrative Agon : A Democratic Theory for a Conflictual Regulatory State

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Agenda-Setting in the Regulatory State: Theory and Evidence

Decoding Nondelegation After Gundy: What the Experience in State Courts Tells Us About What to Expect When We’re Expecting

The Self-Delegation False Alarm: Analyzing Auer Deference's Effect on Agency Rules

The Self-Delegation False Alarm: Analyzing Auer Deference's Effect on Agency Rules

A RESPONSE TO The Administrative Agon : A Democratic Theory for a Conflictual Regulatory State