Administrative Law Prof Blog

Can Indian Tribes Offer a Bypass of Govt Agencies?

This scheme sounds like a scam, but it does raise an interesting question for analogous, but less outlandish, ideas like offering Swiss-style bank accounts, credit cards with higher-than-permitted interest rates, etc.

-D.S.

Disciplinary Announcements on Websites & Tolling the Statute of Limitations for Actions Against the Agency

The 9th Circuit has ruled (May 3, 2007) that the California Bar Association's second posting of a disciplined attorney's record on a different part of its website does not trigger a new statute of limitations for lawsuits against the CBA.  The Canatella case is interesting, I think, not only because of it gives a voyeuristically-appealing view into the alleged shenanigans of a wayward lawyer, but also because it touches on the issue of agencies making information (which is sort of public, but also sort of private) available on their websites, and the implications of that for litigation against it.

-Dru Stevenson

Motivating More Agency Enforcement?

Professor William Andreen's new article, Motivating Enforcement: Institutional Culture and the Clean Water Act, presents the interesting question of how to keep environmental enforcement going despite pressures from an anti-regulatory White House or Congress to refrain.  His solution is to cultivate a tough, stable enforcement culture and tradition within the EPA that will forge ahead regardless of political changes in the elected branches of the government.  I didn't find many concrete suggestions in the article about how to accomplish this goal, but he nicely explains the historical buildup of the non-enforcement problem; and I like his style of prose. 

I think this question is interesting and is certainly applicable to regulatory agencies generally (the Antitrust Division, for example, or the NLRB).  The flip side of the issue, of course, is whether non-enforcement is a problem at all, or if instead it's the only thing that earns administrative agencies a legitimate place in a democracy - the citizenry can always keep overzealous, tunnel-visioned bureaucrats in check by electing a President who will tighten the leash, or a Congress that will pull the plug.  Not that there are any overzealous agents at the EPA; I am speaking hypothetically. In other words, one could argue that non-enforcement is the Admin equivalent of jury nullification.  Positions on the non-enforcement controversy generally correlate to one's prior givens about the virtues or necessity of the regulations themselves. 

That issue aside (which is hard to ignore for more than a moment), Andreen's article does pose an interesting question, to which I've found no truly satisfactory answer: how to motivate enforcement officials to be productive, without giving them a vested interest or perverse incentive that would taint their prosecutorial decisions.  Civil servants usually earn less than their private-sector counterparts (one of the reasons I find the "privatization-will-save-us-money" refrain to be mystifying), and have fewer office supplies available in the stock room, but supposedly this is offset by the less-tangible perks of job security, more reasonable work hours, and (?) the warm glow one feels from doing the right thing.  So much for retention - in this context, how does one motivate them to hunt down violators as fast as possible?  A related question that Andreen does not ask, but certainly implies, is how to prioritize the agent's duty to the Chief Executive (or the Congressional Committee) vs. duty to the statute itself - especially when the two seem to be in conflict.  How can one choose the latter without encountering a separation of powers problem?  I haven't figured out a workable solution, I confess.

-Dru Stevenson

Recent Posner Case...

Judge Posner wrote an interesting opinion (aren't they all?) recently in U.S. Dept. of Ed. v. National Collegiate Athletic Ass'n, 481 F.3d 936 (7th Cir. 2007).  This case should be interesting for those interested in sports law and in the issue of administrative agencies protecting confidential information obtained by subpoena.  It also discusses (and dismisses) the distinction between judicial and administrative subpoenas.

The NCAA has a type of amnesty program for members who violate the NCAA rules - voluntary disclosure by the violator school can mitigate the otherwise hefty sanctions the NCAA might impose.  The Dept. of Ed., however, took an interest in this case for prosecutorial purposes, and subpoenaed (what a funny word) the records of this recent self-disclosure.  The NCAA, arguing that nobody will be forthcoming about their own violations if the DOE gets (and exposes) the information, asked for injunctive relief - either to be excused from the subpoena, or to have the DOE required to give advance notice to the NCAA before it yields the scandalous info to anyone else. 

Posner & Co. reject the NCAA's claims (after an insightful discussion of the incentives for the parties involved in such cases).  I thought both sides had colorable arguments here, and the case would be useful in the classroom for getting students to discuss/think about what agencies should be able to do with private, embarrassing information. 

Someone recently asked me about this issue - how to get an agency to "seal" a record the way courts sometimes do.  I am not aware of any relevant statutory provision about this - PLEASE write to me or post a comment if there is some applicable statute (sort of an anti-FOIA) that I've missed.  So I speculated that the best shot was going to court to ask for injunctive relief, hoping the court would enjoin the agency from disclosing the documents in the administrative record, as in this case.  It still seems like this is the main remedy (unless the agency has its own procedure for requesting that records be sealed).  DOE v. NCAA does cite some authority indicating that this is possible in some cases, but it also makes it clear that this will be an uphill battle.  In the end, the court says it treats these requests on a case-by-case basis, weighing factors such as the potential burden/harm to the party subpoenaed, the public benefits related to the agency's investigation, etc. 

Posner acknowledges that the NCAA and another voluntary reporter are already defendants in a pending defamation suit, seeking $60 million in damages, where the NCAA turned over the information to a grand jury pursuant to another subpoena.  Ouch!  No wonder the NCAA is skittish about doing the same thing again, and is in court asking for some protection from this seemingly unlimited liability.  I thought Posner made too little of this.  If I were legal counsel for the NCAA, I would have done the same thing, given the circumstances.  In fact, it seems to serve as a cautionary tale to other trade associations an private-sector certification boards about the costs of soliciting confessions from members about violations, or promising amnesty for such self-disclosure.

-Dru Stevenson

For those interested in Posner, or the darker side of education law (often a subset of Administrative Law), the following recent case is simply hilarious/outrageous (actually, worth forwarding for the laugh value): Brandt v. Board of Educ. of City of Chicago, 480 F.3d 460 (2007).  Pity the child whose mommy is a litigator.

Anyway, I thought the case had good pedagogical potential because of its crystal-clear discussion of subjects ranging from administrative subpoenas to FOIA exceptions to equitable remedies against administrative agencies.

Article Spotlight: "Legal Prediction and Legal Postdiction"

Perusing the list of papers for this past weekend's American Law & Economics Association Annual Meeting (at Harvard Law School - I could not attend, unfortunately), I came across this terrific piece by Ehud Guttel and Alon Harel (both of Hebrew University) entitled Uncertainty Revisited: Legal Prediction and Legal Postdiction.

(I have not found it yet on SSRN; if anyone has the link, please send it to me). It's a must-read for those interested in Knightian Uncertainty (or Ellsberg's Paradox) and the incentives created by legal sanctions.

Guttel and Harel survey the experimental psychology literature to demonstrate that individuals have a significantly greater aversion to uncertainty about past (or present-perfect) events than they do about uncertainty regarding future events.  I cannot do justice to their argument here, but experiments show, for example, that people are more willing to place bets, and bet greater sums, on a roll of dice before it occurs than after it occurs but the result is hidden; and so on.  "Postdiction" is backward-looking prediction - that is, guessing about past or present unknown facts (like the number of beans in a jar at the carnival, perhaps?).  (I also found myself wondering if the "wisdom of crowds" theory is more applicable to postdiction or prediction...the book by this title used both types of examples.  If anyone knows of a good study on this, please let me know!).

Of particular relevance for Admin Law scholars would be the article's application of the theory to the famous rules-versus-standards debate (the authors conclude, contrary to most law & econ literature, that if rules are sufficiently complex/inscrutable, they create more deterrence than vague standards, because of the postdiction/prediction dichotomy). Also relevant are the examples of pollution regulations and criminal law enforcement techniques.

I also found their example about tax regulations helpful:

To illustrate the difference between these two types of precautions let us investigate the example of tax compliance. Tax enforcement authorities face a choice between two strategies. Under one enforcement mechanism the tax authorities select in advance (before the beginning of the auditing period) the identities of the individuals who are going to be audited. Under a second mechanism the tax authorities select the names at
the end of the auditing period.

Under the first enforcement mechanism, individuals who commit fraud are engaged in postdiction. The question whether they will be audited had been determined prior to the commission of the offense, so that committing the offence exposes them to a risk concerning a past event. Under the second mechanism, individuals who commit fraud are engaged in prediction, i.e., a lottery concerning the question of whether their names will be selected for an audit after the commission of the offense. If individuals are indeed, as research has demonstrated, particularly averse to postdiction, the former mechanism has greater deterrence effects than the latter. The perception of potential transgressors that the facts concerning who is going to be audited had been determined before their decision whether to commit fraud generates greater deterrence than under circumstances in which the facts concerning who is going to be audited will be determined after the commission of the offense.

                                                                                                                   -Dru Stevenson