Jerry Louis Mashaw: "Federal Administration and Administrative Law in the Gilded Age"

Jerry Louis Mashaw (Yale Law School) has posted "Federal Administration and Administrative Law in the Gilded Age" (Yale Law School, Public Law Working Paper No. 201). Here's the abstract:

This article has a simple message. The standard history of the development of American Administrative Law is at best partial and in many respects incorrect. The national government of the United States was an administrative government from the very beginning of the Republic. Moreover, that administrative government then, as now, was both constituted and constrained by law. In short, America had a federal administrative law long before that field of law was either recognized or named.

In order to see administrative law in an era that mostly denies its existence, my inquiry is structured around three very general issues of governmental organization. Following the lead of Frank Goodnow, I see administrative officers as operating within three overlapping accountability regimes: political accountability to elected officials; hierarchical or managerial accountability to administrative superiors; and legal accountability to individuals and firms through judicial review. The distinctive characteristics of administration and administrative law in particular periods depend upon the relative importance of these regimes in structuring and checking administrative discretion and the particular mechanisms that political, administrative and legal actors deploy. Both the forms of and the balance among regimes shift over time. Indeed, it is the distinctive form and balance among these accountability regimes in the organization of 19th century national administration that has made administrative law invisible. But in every era there is a law of administration. To ignore that “administrative law” prior to the Interstate Commerce Act, in what I now tend to think of as “the lost 100 years of American administrative law,” is to ignore much of how American administrative institutions have been built, maintained and constrained. And, in my view, it is to ignore the incremental and pragmatic processes by which American public law usually develops.

This article treats the Gilded Age incarnation of each of these three accountability regimes in turn. It first describes developments in the political control of administration in Post-Bellum America and the emergence of the “apolitical” civil service ideal, partially embodied in the Pendleton Act of 1883. As in all periods of American history, political control of administration in this period features both organizational changes in the political branches and the continuing struggle between presidents and congresses for dominance. The defining feature of this era might be said to be the migration of the provision of secure tenure in office from a congressional strategy to weaken presidential control over high-level administrators to an institutionalized protection for lower level officials that, in practical effect, constrained congressional power.

The article next looks at developments in judicial review. Prior to 1860 judicial review of administrative action by federal courts had, to modern eyes, a peculiar structure. Review by mandamus or injunction was extremely limited and statutes providing for appeals to federal courts from administrative decisions were virtually non-existent. On the other hand, officers sued as individuals for damages were in effect subjected to de novo review for any error of law or fact. In the post-Bellum world this structure began to weaken, but it would take many years to morph into the almost directly contradictory structure that we know today.

Finally, the article depicts the processes and structures of managerial or bureaucratic accountability. This is where 19th century administrative law mostly developed. In many ways the second half of the nineteenth century might be called an age of administrative adjudication. While we now think of mass administrative adjudication as an artifact of the mid-twentieth century welfare state, these practices in fact have a much longer history. Tens of thousands of claims were adjudicated, not just by the Court of Claims in suits against the United States, but also by the United States Patent Office, the Revenue and Accounting Officers in the Treasury’s Division of the Controller, the district and general land offices of the Department of the Interior and the Bureau of Pensions. Notwithstanding the relatively casual attention to administrative procedure in both Congress and the courts, those charged with adjudicating these claims developed highly structured and often quite formal processes of decisionmaking. As we shall see, these processes were not entirely free from congressional or judicial oversight, but important substantive, and virtually all procedural, norms for administrative adjudication were constructed by the agencies themselves.Moreover, the normative structure of that law, unlike the late 19th century external law of judicial review, is deeply familiar to contemporary administrative lawyers. With scant direction from Congress, and none from the courts, agencies built systems of adjudication that featured transparent procedures and precedents, internal separation of functions, professionalization of adjudicatory personnel, safeguards against personal and political bias and robust opportunities for documentary or oral hearings. From this perspective we might understand the so-called “rights revolution” of the 1960s and 1970s, in part, as a consolidation in constitutional doctrine of administrative practices that represent a continuous, but seldom acknowledged, administrative law tradition.

Tiago Fidalgo de Freitas: "Portuguese Migration Law - A Constitutional and Administrative Overview"

Tiago Fidalgo de Freitas (European University Institute Law Department) has posted "Portuguese Migration Law - A Constitutional and Administrative Overview" (European Review of Public Law, Vol. 21, No. I, pp. 345-401, 2009). Here's the abstract:

This paper analyzes both the constitutional and the administrative law perspectives of immigration law in Portugal. In the first part, an account of the constitutional principle of assimilation between the rights and duties of Portuguese citizens and those of foreigners is offered. In the second part, the most relevant aspects of the Immigration Act are analyzed: the admission of foreigners, the residence of foreigners and the status of residents, the removal of foreigners from the Portuguese territory and the principles of administrative procedure.

Richard H. Pildes: "Separation of Powers, Independent Agencies, and Financial Regulation: The Case of the Sarbanes-Oxley Act"

Richard H. Pildes (New York University School of Law) has posted "Separation of Powers, Independent Agencies, and Financial Regulation: The Case of the Sarbanes-Oxley Act" (NYU Journal of Law and Business, Vol. 5, p. 485, 2009). Here's the abstract:

The Supreme Court will hear in December one of the most important separation-of-powers case in many years involving the structure of administrative agencies. The case, Free Enterprise Fund v. The Public Company Accounting Oversight Board, and this article, addresses virtually every major constitutional issue regarding the design of administrative governance: the line between principal and inferior officers of the United States; the appointment power; the removal power; separation of powers; and the status of independent agencies, including whether they can be "Departments" under the Constitution. The case is a challenge to the constitutionality of the Sarbanes-Oxley Act, which Congress enacted in 2002 to address the corporate auditing debacles in cases such as Enron, WorldCom, and others. The Act's centerpiece was a new regulatory body, located within the Securities and Exchange Commission, with the power to regulate and oversee the accounting industry in the United States, under the supervision of the SEC. Judicial resolution of this conflict will determine not only the constitutionality of regulatory oversight of the accounting industry that Sarbanes-Oxley sets up. That resolution will determine the kinds of options Congress has for designing politically-insulated administrative structures to deal with the current financial crisis and with other major regulatory needs in the coming years. This article analyzes these central constitutional issues in the context of the larger system of financial regulation. The analysis argues that the Sarbanes-Oxley Act and the new agency it creates is constitutional. This article is a substantially revised version, which addresses a number of new issues, of an earlier posted draft

Gersen & O'Connell: "Hiding in Plain Sight? Timing and Transparency in the Administrative State"

Jacob E. Gersen (University of Chicago Law School) and Anne Joseph O'Connell (University of California, Berkeley - School of Law) have posted "Hiding in Plain Sight? Timing and Transparency in the Administrative State" (University of Chicago Law Review, Vol. 76, 2009). Here's the abstract:

Anecdotal evidence of agencies burying bad news is rife in law and politics. The bureaucracy regularly is accused of announcing controversial policies on holidays and weekends when public attention is elsewhere. We show that this conventional wisdom is wrong, or at least significantly incomplete. The conventional wisdom is riddled with theoretical holes, and there is little systematic empirical evidence to support it. After critiquing the conventional account of agencies hiding bad news, we articulate and defend a revised theory of strategic timing in administrative law. We argue that timing decisions rarely affect the visibility of decisions but can drive up the costs of monitoring and responding for interest groups and legislative coalitions. Agency discretion to choose when to announce policy decisions can even allow agencies to influence which interest groups monitor the regulatory process and therefore whose preferences must be taken into account. We evaluate both the conventional wisdom and our revised theory using twenty-five years of empirical evidence. We then develop the implications for administrative law doctrine and institutional design of the bureaucracy.

Edwin L Felter Jr.: "Accountability in the Administrative Law Judiciary: the Right and Wrong Kind"

Edwin L Felter Jr. has posted "Accountability in the Administrative Law Judiciary: the Right and Wrong Kind" (Denver University Law Review, Vol. 157, pp. 1-37, 2008). Here's the abstract:

In the Introduction to the symposium edition of the law review, Justice Sandra Day O'Connor states: "Colorado administrative law judge Edwin L. Felter, Jr., [then] discusses and evaluates several forms of accountability in the administrative law judiciary, and compares them with prevalent forms of accountability in the judicial branch. Felter argues that codes of judicial conduct, as well as formal enforcement mechanisms, work together to maintain a balance of independence and accountability in the administrative law judiciary."

The article analyzes the "right kinds" of accountability as distinguished from the "wrong kind" of accountability, i.e., political accountability.

The article maintains that decisional independence is the cornerstone of any properly functioning adjudication system. The price of decisional independence is accountability to concepts and mechanisms other than the political system.

The article maintains that the first mechanism of accountability for all judicial and quasi-judicial officers is the requirement of "reasoned elaboration,"which is the prerequisite to second form of accountability, judicial review. The next mechanism is accountability to the relevant code of judicial conduct. Indeed, the 2007 ABA Model Code of Judicial Conduct refers to the administrative law judiciary. All codes of judicial conduct espouse the values of independence, impartiality, integrity, diligence and competence.

The article discusses and analyzes appropriate and inappropriate judicial performance evaluations. It distinguishes developmental evaluations (for the purpose of performance improvement, but not to affect pay or employment status) from judgmental evaluations. Developmental evaluations are sometimes in the form of anonymous surveys of practitioners and litigants, peer review quality assurance processes and/or both. Judgmental evaluations, which often legally required and can affect pay and employment status, can be evaluations by a supervisory judge or by a performance commission.

The article concludes with an argument against political evaluations of judges because these evaluations are generally based on the wrong reasons, e.g., the political clamor of the day. The article takes issue with James Bopp, Jr., Esq., of Indiana (who successfully argued Republican Party of Minnesota v. White before the U.S. Supreme Court), who maintains that judges should be responsive to the electorate and should be free to make campaign promises, e.g. "elect me and I'll string up those criminals." The article recommends that administrative law judges must constantly create, develop and implement meaningful accountability measures that demonstrate a high degree of accountability.