Agency Coordination in Shared Regulatory Space

IF 3.5 2区 社会学 Q1 LAW
J. Freeman, Jim Rossi
{"title":"Agency Coordination in Shared Regulatory Space","authors":"J. Freeman, Jim Rossi","doi":"10.2139/SSRN.1778363","DOIUrl":null,"url":null,"abstract":"This Article argues that inter-agency coordination is one of the great challenges of modern governance. It explains why lawmakers frequently assign overlapping and fragmented delegations that require agencies to “share regulatory space,” why these delegations are so pervasive and stubborn, and why consolidating or eliminating agency functions will not solve the problems they create. The Article describes a variety of tools that Congress, the President and the agencies can use to manage coordination challenges effectively, including agency interaction requirements, formal inter-agency agreements, and joint policymaking. The Article assesses the relative costs and benefits of these coordination tools, using the normative criteria of efficiency, effectiveness and accountability, and concludes that the benefits of coordination will frequently justify its costs. To varying extents, these instruments can reduce regulatory costs for both government and the private sector, improve expertise, and ameliorate the risk of bureaucratic drift without compromising transparency. Coordination can also help to preserve the functional aspects of shared or overlapping authority, which include promoting inter-agency competition and accountability, while minimizing its dysfunctions in terms of discordant policy. While burdensome, shared regulatory space should also provide an important opportunity for the President to extend his reach. The Article argues that the President is uniquely positioned and motivated to manage the problems of shared regulatory space, and that coordination tools afford him the chance to put his stamp on policy. The Article recommends a comprehensive executive branch effort to promote stronger inter-agency coordination and improve coordination instruments. Of course, any presidential exercise of centralized supervision must operate within legal bounds, and often will be politically contentious. On balance, however, presidential leadership will be crucial to managing the serious coordination challenges presented by modern governance, and existing political and legal checks on potential overreach are sufficient to manage any conflicts with Congress. The Article concludes by exploring the implications of enhanced inter-agency coordination for judicial review. Courts might adjust standards of review to promote coordination, but even under existing standards of review policy decisions arrived at through strong inter-agency coordination likely will attract greater deference. The Article shows that greater coordination is relatively unlikely to impact the outcome of the Chevron inquiry for reviewing agency legal interpretations. Yet it also suggests some minor doctrinal adjustments that could lead to greater deference where agencies use certain coordination instruments to adopt shared legal interpretations. The larger conceptual purpose of the Article is to draw attention to the phenomenon of shared regulatory space and highlight the pressing need for inter-agency coordination as a response. It invites scholars and practitioners to focus on inter-agency dynamics, which requires a departure from the single-agency focus that has traditionally been so central to administrative law.","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"125 1","pages":"1131-1211"},"PeriodicalIF":3.5000,"publicationDate":"2011-03-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1778363","citationCount":"114","resultStr":null,"platform":"Semanticscholar","paperid":null,"PeriodicalName":"Harvard Law Review","FirstCategoryId":"90","ListUrlMain":"https://doi.org/10.2139/SSRN.1778363","RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q1","JCRName":"LAW","Score":null,"Total":0}
引用次数: 114

Abstract

This Article argues that inter-agency coordination is one of the great challenges of modern governance. It explains why lawmakers frequently assign overlapping and fragmented delegations that require agencies to “share regulatory space,” why these delegations are so pervasive and stubborn, and why consolidating or eliminating agency functions will not solve the problems they create. The Article describes a variety of tools that Congress, the President and the agencies can use to manage coordination challenges effectively, including agency interaction requirements, formal inter-agency agreements, and joint policymaking. The Article assesses the relative costs and benefits of these coordination tools, using the normative criteria of efficiency, effectiveness and accountability, and concludes that the benefits of coordination will frequently justify its costs. To varying extents, these instruments can reduce regulatory costs for both government and the private sector, improve expertise, and ameliorate the risk of bureaucratic drift without compromising transparency. Coordination can also help to preserve the functional aspects of shared or overlapping authority, which include promoting inter-agency competition and accountability, while minimizing its dysfunctions in terms of discordant policy. While burdensome, shared regulatory space should also provide an important opportunity for the President to extend his reach. The Article argues that the President is uniquely positioned and motivated to manage the problems of shared regulatory space, and that coordination tools afford him the chance to put his stamp on policy. The Article recommends a comprehensive executive branch effort to promote stronger inter-agency coordination and improve coordination instruments. Of course, any presidential exercise of centralized supervision must operate within legal bounds, and often will be politically contentious. On balance, however, presidential leadership will be crucial to managing the serious coordination challenges presented by modern governance, and existing political and legal checks on potential overreach are sufficient to manage any conflicts with Congress. The Article concludes by exploring the implications of enhanced inter-agency coordination for judicial review. Courts might adjust standards of review to promote coordination, but even under existing standards of review policy decisions arrived at through strong inter-agency coordination likely will attract greater deference. The Article shows that greater coordination is relatively unlikely to impact the outcome of the Chevron inquiry for reviewing agency legal interpretations. Yet it also suggests some minor doctrinal adjustments that could lead to greater deference where agencies use certain coordination instruments to adopt shared legal interpretations. The larger conceptual purpose of the Article is to draw attention to the phenomenon of shared regulatory space and highlight the pressing need for inter-agency coordination as a response. It invites scholars and practitioners to focus on inter-agency dynamics, which requires a departure from the single-agency focus that has traditionally been so central to administrative law.
共享监管空间中的机构协调
机构间协调是现代治理面临的重大挑战之一。它解释了为什么立法者经常分配重叠和分散的代表团,要求各机构“共享监管空间”,为什么这些代表团如此普遍和顽固,为什么合并或取消机构职能并不能解决它们所造成的问题。本文描述了国会、总统和各机构可以用来有效管理协调挑战的各种工具,包括机构互动要求、正式的机构间协议和联合决策。本文使用效率、有效性和问责制的规范标准评估了这些协调工具的相对成本和收益,并得出结论,协调的收益将经常证明其成本是合理的。在不同程度上,这些工具可以降低政府和私营部门的监管成本,提高专业知识,并在不损害透明度的情况下减轻官僚主义漂移的风险。协调也有助于保持共同或重叠权力的职能方面,其中包括促进机构间竞争和责任,同时尽量减少其在政策不一致方面的功能失调。虽然繁重,但共享的监管空间也应该为总统扩大其影响力提供重要机会。这篇文章认为,总统在管理共享监管空间的问题上处于独特的地位和动力,而协调工具使他有机会在政策上打上自己的印记。该条建议行政部门作出全面努力,促进更强有力的机构间协调和改进协调手段。当然,总统行使的任何集中监督都必须在法律范围内进行,而且往往会在政治上引起争议。然而,总的来说,总统的领导能力对于应对现代治理带来的严重协调挑战至关重要,现有的对潜在越权的政治和法律检查足以应对与国会的任何冲突。文章最后探讨了加强机构间协调对司法审查的影响。法院可能会调整审查标准以促进协调,但即使在现有的审查标准下,通过强有力的机构间协调作出的政策决定也可能会得到更大的尊重。文章表明,更大的协调相对不太可能影响雪佛龙调查的结果,以审查机构的法律解释。然而,它也建议进行一些小的理论调整,在各机构使用某些协调工具采用共同的法律解释时,可能导致更大的尊重。该条更大的概念目的是引起人们对共享监管空间现象的关注,并强调机构间协调作为应对措施的迫切需要。它邀请学者和实践者把重点放在机构间的动态上,这需要摆脱传统上对行政法如此重要的单一机构的关注。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
求助全文
约1分钟内获得全文 求助全文
来源期刊
CiteScore
2.90
自引率
11.80%
发文量
1
期刊介绍: The Harvard Law Review is a student-run organization whose primary purpose is to publish a journal of legal scholarship. The Review comes out monthly from November through June and has roughly 2,500 pages per volume. The organization is formally independent of the Harvard Law School. Student editors make all editorial and organizational decisions and, together with a professional business staff of three, carry out day-to-day operations. Aside from serving as an important academic forum for legal scholarship, the Review has two other goals. First, the journal is designed to be an effective research tool for practicing lawyers and students of the law. Second, it provides opportunities for Review members to develop their own editing and writing skills. Accordingly, each issue contains pieces by student editors as well as outside authors. The Review publishes articles by professors, judges, and practitioners and solicits reviews of important recent books from recognized experts. All articles — even those by the most respected authorities — are subjected to a rigorous editorial process designed to sharpen and strengthen substance and tone.
×
引用
GB/T 7714-2015
复制
MLA
复制
APA
复制
导出至
BibTeX EndNote RefMan NoteFirst NoteExpress
×
提示
您的信息不完整,为了账户安全,请先补充。
现在去补充
×
提示
您因"违规操作"
具体请查看互助需知
我知道了
×
提示
确定
请完成安全验证×
copy
已复制链接
快去分享给好友吧!
我知道了
右上角分享
点击右上角分享
0
联系我们:info@booksci.cn Book学术提供免费学术资源搜索服务,方便国内外学者检索中英文文献。致力于提供最便捷和优质的服务体验。 Copyright © 2023 布克学术 All rights reserved.
京ICP备2023020795号-1
ghs 京公网安备 11010802042870号
Book学术文献互助
Book学术文献互助群
群 号:481959085
Book学术官方微信