{"title":"The Politics of Deference","authors":"G. Elinson, Jon B. Gould","doi":"10.2139/ssrn.3889828","DOIUrl":"https://doi.org/10.2139/ssrn.3889828","url":null,"abstract":"Like so much else in our politics, the administrative state is fiercely contested. Conservatives decry its legitimacy and seek to limit its power; liberals defend its necessity and legality. Debates have increasingly centered on the doctrine of Chevron deference, under which courts defer to agencies’ reasonable interpretations of ambiguous statutory language. Given both sides’ increasingly entrenched positions, it is easy to think that conservatives have always warned of the dangers of deference, while liberals have always defended its virtues. Not so. This Article tells the political history of deference for the first time, using previously untapped primary sources including presidential and congressional archives, statements by interest groups, and partisan media sources. It recounts how the politics of deference have varied over time, even though the issue is often framed in terms that resist evolutionary analysis. As the administrative state grew in the 1970s, conservatives in Congress sought to rein in deference, while liberals defended it. These positions reversed in the 1980s, as the Reagan Administration relied on flexible readings of statutes in service of its deregulatory efforts, including in the Chevron case itself. After a period of political détente, the 2010s witnessed a resurgence of conservative opposition and liberal support for Chevron, driven largely by the ascendance of libertarian interests in the Republican Party and the increasingly central role of administrative policymaking to the agenda of the Democratic Party. The Article then develops a framework for understanding the shifting politics of deference. It argues that the politics of deference are the politics of regulation: for nearly a half-century, partisans and interest groups have viewed doctrinal debates as inexorably tied to interests in policy outcomes. Positions about Chevron have varied based on which party controls the presidency and the ideological makeup of the federal courts. But the parties are also asymmetrically reliant on the administrative state, and thus on judicial deference. Liberals depend on deference to advance their regulatory goals in the face of an often-gridlocked Congress, while conservatives have many paths to accomplishing their deregulatory ends. The conservative turn against the so-called “deep state” and Chevron’s non-application in areas where conservatives most favor deference (such as national security) further exacerbate the partisan split on the doctrine. And Chevron has become a rhetorical cudgel in broader partisan debates about the legality and legitimacy of the administrative state as a whole. Unless these dynamics change, Chevron deference will continue to have a political valence. And so long as the doctrine is understood to create winners and losers, partisans and interest groups will fight to ensure its survival or hasten its demise.","PeriodicalId":258454,"journal":{"name":"LSN: Structure of Government & Separation of Powers (Topic)","volume":"66 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116009896","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Political Pragmatism and Constitutional Principle: The European Union (Withdrawal) Act 2018","authors":"M. Elliott, S. Tierney","doi":"10.17863/CAM.35219","DOIUrl":"https://doi.org/10.17863/CAM.35219","url":null,"abstract":"The European Union (Withdrawal) Act 2018 forms the centrepiece of the UK's domestic legal preparations for its departure from the European Union. The Act aims to capture and domesticate large swathes of EU law so as to safeguard legal continuity upon Brexit. This paper examines the process by which the Act was passed by the UK Parliament and its substantive constitutional implications, which are likely to be far-reaching. Membership of the EU has had a monumental impact not only upon the substantive law of the UK, but also upon the development of fundamental constitutional doctrines, principles and practices over more than four decades, affecting our understanding of parliamentary supremacy, the relationship between Parliament and Government, the constitutional authority of the courts and the creation and development of devolved government. The implications of the Act go far beyond the immediate task of retaining and reordering the domestic effect of EU law. The paper assesses the deeper consequences which the Act signifies for four dimensions of the constitution: the rule of law and legal certainty, parliamentary supremacy, the relationship between Parliament and government, and the UK's territorial constitution.","PeriodicalId":258454,"journal":{"name":"LSN: Structure of Government & Separation of Powers (Topic)","volume":"57 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-09-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121622200","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Tethered President: Consistency and Contingency in Administrative Law","authors":"William W. Buzbee","doi":"10.2139/ssrn.3175473","DOIUrl":"https://doi.org/10.2139/ssrn.3175473","url":null,"abstract":"The law governing administrative agency policy change and checking unjustified inconsistency is rooted in a web of intertwined doctrine. The Supreme Court’s 2016 opinion in Encino Motorcars modestly recast that doctrine to emphasize that the agency pursuing a change cannot leave “unexplained inconsistency” or neglect to address past relevant “underlying facts,” but reaffirmed its central stable precepts. Nonetheless, radically different views about broad, unaccountable, and rapid agency power to make policy changes have been articulated by current Supreme Court Justice Neil Gorsuch, when on the appellate bench, and agencies pursuing deregulatory policy shifts under the leadership of President Donald J. Trump. This article analyzes the mutually reinforcing strands of this body of law, shows the errors underpinning these policy change power claims, and explains how the “contingencies” underlying an initial policy action must always be engaged by a later advocate of policy change. Statutory language constrains while usually leaving room for change, but facts and past agency reasoning unavoidably must be engaged to surmount the sturdy core requirements of consistency doctrine. Recent efforts to overcome or recast consistency doctrine seek greater room for politics and presidential influence and downplay agency obligations to provide rational explanation and engage with regulatory contingencies. Due to the balanced interests protected by consistency doctrine, this article argues that such a doctrinal reworking is unlikely and would be unwise.","PeriodicalId":258454,"journal":{"name":"LSN: Structure of Government & Separation of Powers (Topic)","volume":"17 3","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-04-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120891726","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Le Fédéralisme Coopératif entre Territorialité et Fonctionnalité: Le cas des Valeurs Mobilières (Cooperative Federalism and Securities Regulation)","authors":"Noura Karazivan","doi":"10.7202/1038623AR","DOIUrl":"https://doi.org/10.7202/1038623AR","url":null,"abstract":"French Abstract: Dans la premiere partie de cet article, l'auteure expose les deux horizons analytiques qui ont caracterise le federalisme canadien, en portant une attention particuliere a la maniere dont chacun entrevoit le federalisme cooperatif: le premier, issu d’une approche territoriale ou dualiste, considere les competences exclusives comme un terrain a morceler et considere avec pessimisme le federalisme cooperatif. Le second repose sur une approche fonctionnelle axee sur l’interpretation pragmatique des chefs de competence et le rejet de l’etancheite du partage des pouvoirs et considere avec optimisme le federalisme cooperatif. Dans la deuxieme partie, l'auteure examine les manifestations actuelles du federalisme cooperatif canadien en distinguant deux dimensions : d’une part, une dimension potentielle qui se manifeste lorsque les tribunaux assouplissent les doctrines d’interpretation constitutionnelle dans le cadre de litiges portant sur le partage des competences; dans ces cas, il y a rarement presence de cooperation intergouvernementale ou interparlementaire; mais les juges vont employer le federalisme cooperatif afin de susciter une eventuelle cooperation entre les parties. D’autre part, une dimension actualisee de ce principe se manifeste lorsque les tribunaux prennent acte de la presence de regimes cooperatifs integres dans le cadre de litiges constitutionnels qu’ils sont appeles a decider. La troisieme partie de ce texte prend le litige des valeurs mobilieres comme point d’ancrage afin d’illustrer les potentialites du federalisme cooperatif dans un dossier aussi epineux que symboliquement charge.English Abstract: In the first part of this paper, the author explain Canadian federalism's two dominant paradigms, dualism and functionalism, to which she associates the writings of two former Supreme Court justices: Beetz and Laskin. The author focuses on the way each conceptual framework traditionally views cooperative federalism: respectively, with pessimism and optimism. In the second part, the author considers the current roles played by cooperative federalism, both judicially, as an invitation to cooperate, and politically, as a recognition of power sharing among federal and provincial executives. In the final part of this paper, the impact of cooperative federalism on the first, and the upcoming, references on securities regulation will be addressed, the author outlining the main challenges the new federal-provincial scheme raises.","PeriodicalId":258454,"journal":{"name":"LSN: Structure of Government & Separation of Powers (Topic)","volume":"81 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-10-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115147268","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Analytic Narratives, Case Studies, and Development","authors":"M. Levi, Barry R. Weingast","doi":"10.2139/ssrn.2835704","DOIUrl":"https://doi.org/10.2139/ssrn.2835704","url":null,"abstract":"Analytic narratives (Bates et al 1998, 2000; Levi 2002, 2004) involve selecting a problem or puzzle, then building a model to explicate the logic of an explanation for the puzzle or problem, often in the context of a unique case. The method involves several steps. First, the use of narrative to elucidate the principal players, their preferences, the key decision points and possible choices, and the rules of game, all in a textured and sequenced account. Second, building a model of the sequence of interaction, including predicted outcomes. This criterion generally involves an explicit game and hence an equilibrium. Third, the evaluation of the model through comparative statics and the testable implications the model generates. The analytic narrative approach is most useful to scholars who seek to evaluate the strength of parsimonious causal mechanisms in the context of a specific and often unique case. The requirement of explicit formal theorizing (or at least theory that could be formalized) compels scholars to make causal statements and to identify a small number of variables as central to understanding the case.","PeriodicalId":258454,"journal":{"name":"LSN: Structure of Government & Separation of Powers (Topic)","volume":"53 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-09-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130055558","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Legal Informality and Human Capital Development in China","authors":"Ruoying Chen","doi":"10.1093/acprof:oso/9780190250256.003.0007","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780190250256.003.0007","url":null,"abstract":"China is often cited as a counterexample to the hypothesis that economic growth needs the support of certain basic legal institutions, such as strong protection of property rights and legal enforcement of contracts. The widespread legal informality in contracts among SOEs and in the way government has carried out regulation supports the claim that China in fact has lacked such growth-supporting legal institutions. Indeed, such legal informality may even have contributed to China’s economic growth by reducing transaction costs in contracts and administrative costs in government regulation. \u0000Correlation between legal informality and economic growth is not, however, the same as causation. Even if we could establish that such informality was an effective engine of China’s economic growth over the past three decades, past success does not guarantee anything for the future. China has changed as a result of economic growth. The range of actors involved in the Chinese economy and the stakes involved have dramatically increased. The state can no longer internalize the potential losses resulting from legal informality. The nature of potential risks and consequences of decisions made by market players and regulators have become more complicated. This complexity necessitates higher-quality information and more sophisticated skills for risk assessment and management. Under these new circumstances, legal informality is increasingly likely to generate decisions that do not fully incorporate associated risks or reflect necessary risk-control measures. Continued reliance on informality fails to provide sufficient incentives to individuals to acquire the information and skills required to assess and to manage risks involved in contracts and regulation. Individuals operating in such legal informality may resist reforms that would lead toward more rule-based and reason-based legal institutions because they are short of skills that are required in such a new regime. Executives of SOEs, legal professionals, and regulatory officials may be particularly likely to suffer in continued legal informality because they currently do not have enough incentives to develop the skills in dealing with complicated risks in the market. In a more developed and naturally complicated economy, legal informality is not only ineffective and inefficient, but also detrimental to those individuals at the center of legal institutions. \u0000The rest of this chapter is organized as follows. Section I introduces the concept of “legal informality” in the context of China’s legal development over the past three decades. Section II uses two examples to explain the legal informality in contracts among SOEs: (1) sales of non-performing loans (NPLs) by state-owned banks to state-owned financial asset management companies (AMCs), and (2) advances of loans by state-owned banks to the government’s land-stock authorities (LSAs) secured with land-stock mortgage (LSM). Section III illustrates informality in regu","PeriodicalId":258454,"journal":{"name":"LSN: Structure of Government & Separation of Powers (Topic)","volume":"102 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-05-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121410158","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Sovereign Debt Restructuring: Covenant and Default Clauses in Sovereign and Corporate Bonds and How the Difference Among Them Impacts in the NMLCase Against the Republic of Argentina in New York","authors":"Eugenio A. Bruno","doi":"10.2139/SSRN.2279461","DOIUrl":"https://doi.org/10.2139/SSRN.2279461","url":null,"abstract":"This paper discusses key clauses of the sovereign and corporate debt bonds, with emphasis in the latter ones. In particular, the paper analyses such clauses as covenants, events of default, rights to sue and modifications and how they are applied in a sovereign debt restructuring process. It then also discusses the current events faced by the Republic of Argentina under its debt situation and the relationship between those events with the judicial case against the republic being litigated in the courts of New York. It finally describes the different ways that Argentina may take upon the various possible outcomes from said judicial proceedings before the courts of New York.","PeriodicalId":258454,"journal":{"name":"LSN: Structure of Government & Separation of Powers (Topic)","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-06-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115404356","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Does Federal Spending 'Coerce' States? Evidence from State Budgets","authors":"Brian Galle","doi":"10.2139/ssrn.2150721","DOIUrl":"https://doi.org/10.2139/ssrn.2150721","url":null,"abstract":"According to a recent plurality of the U.S. Supreme Court, the danger that federal taxes will “crowd out” state revenues justifies aggressive judicial limits on the conditions attached to federal spending. Economic theory offers a number of reasons to believe the opposite: federal revenue increases may also float state boats. To test these competing claims, I examine for the first time the relationship between total federal revenues and state revenues. I find that, contra the NFIB plurality, increases in federal revenue -- controlling, of course, for economic performance and other factors -- are associated with a large and statistically significant increase in state revenues. This version of the study additionally provides extensive background explanations of underlying economic concepts for readers unfamiliar with the prior public finance literature.","PeriodicalId":258454,"journal":{"name":"LSN: Structure of Government & Separation of Powers (Topic)","volume":"263 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-05-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134191874","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Transparency in Troubled Times","authors":"A. Roberts","doi":"10.2139/SSRN.2153986","DOIUrl":"https://doi.org/10.2139/SSRN.2153986","url":null,"abstract":"Presentation to the Tenth World Conference of the International Ombudsman Institute, Wellington, New Zealand. For delivery on 14 November 2012. Difficult economic times are often threatening to the idea of transparency. Financially troubled governments argue that openness is a luxury, not a necessity. And the political uncertainty that is generated by economic troubles sometimes makes governments hesitant about releasing sensitive information. But the reluctance to maintain transparency can have serious consequences. Secretiveness can undermine the legitimacy of governmental action and contribute to political instability. Indeed, the crisis itself can be regarded as the result of multiple failures of transparency in the private and public sectors. The temptation to view openness as a luxury must be resisted. It is precisely at the moment of economic crisis that the idea of transparency is most important.","PeriodicalId":258454,"journal":{"name":"LSN: Structure of Government & Separation of Powers (Topic)","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-10-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115131562","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The (Non-)Effects of Campaign Finance Spending Bans on Macro Political Outcomes: Evidence from the States","authors":"Raymond J. La Raja, Brian F. Schaffner","doi":"10.2139/ssrn.2017056","DOIUrl":"https://doi.org/10.2139/ssrn.2017056","url":null,"abstract":"This paper seeks to understand the effect of campaign finance laws on electoral and policy outcomes. Spurred by the recent Supreme Court decision, Citizens United v. FEC (2010), which eliminated bans on corporate and union political spending, the study focuses on whether such bans generate consequences notably different from an electoral system that lacks such bans. We observe three key outcomes: partisan control of government, incumbent reelection rates and corporate tax burdens. Using historical data on regulations in 49 American states between 1935 and 2009 we test alternative models for evaluating the impact of corporate and union spending bans put in place during this period. The results indicate that spending bans appear to have limited, if any, effect on these outcomes.","PeriodicalId":258454,"journal":{"name":"LSN: Structure of Government & Separation of Powers (Topic)","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116546311","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}