Rethinking Regulatory Democracy

This article empirically examines democratic participation in three different regulatory proceedings, involving financial privacy, nuclear regulation, and campaign finance. It then uses that analysis to critique -- and suggest alternatives to -- existing mechanisms to achieve public participation in the regulatory state. The current mechanism for structuring public participation in regulatory decisions (or “regulatory democracy”) relies on demand-driven procedures like the Administrative Procedure Act’s notice and comment process. Organized interests and others who decide they have sufficient resources and interest to do so comment on regulations. While some observers consider this process close to ideal, others instead seem to accept the current approach only because it appears to be a reasonable compromise adequate for an imperfect world. Under this “compromise acceptance” view, current procedures seem easier to accept in light of certain empirical suppositions, such as that regulatory problems can be resolved through application of technical, scientific expertise, that individual members of the public tend to lack interest in participating in regulatory policymaking, and that even if they had such interest, they would add little to a process already informed by the views of organized interests. Drawing on an empirical analysis of thousands of public comments in these three regulations, as well as a rich empirical literature in political behavior, I show many of these suppositions to be questionable. (1) Comments from individual members of the public make up a substantial proportion of total comments about some regulations, showing at least some potential public demand for participation. (2) Dramatic differences exist in the sophistication of comments from organized interests and those of individual members of the public. (3) That deficit in sophistication independently affects the probability an agency will accept suggestions in public comments even when controlling for differences in commenter identity. (4) Interest groups do not always raise the range of concerns raised by comments from the lay public. (5) The larger public’s interest in a particular regulation and sophistication to take part in discussing it are both themselves shaped by the process used to consult that public. All this hints at a rich set of possibilities for alternative institutional designs to achieve regulatory democracy. I discuss two such approaches here. Both involve constituting a small group of people whose discussions can inform the regulatory process, and appointing a lawyer to serve as a “regulatory public defender” responsible for articulating their views to the agency. Participants can be either selected by lot from the entire population (a majoritarian deliberation approach), or chosen from among constituencies (such as outside experts) who may be especially impacted by the regulation but are essentially unrepresented (a corrective approach). Given that neither the public’s sophistication nor its interest in an issue are fixed, the new approaches can generate valuable information about what informed citizens think of regulatory proposals. These mechanisms can provide regulators with valuable information about what makes a new law acceptable to the public. Many of the technical challenges could be solved by creating a separate agency to implement reforms in regulatory democracy, though questions arise about sampling to select participants, framing the issue, and providing representation to the views of the group. Instead, the larger challenge to the reform of regulatory democracy is a political economy that strongly -- though not inevitably -- favors the status quo. I close by discussing three scenarios where reform would be easier to achieve

National Security CAPPS Individual Civil Liberties in Times of Crisis

This note attempts to objectively compare and contrast instances of past national emergencies with the ongoing “war on terror;” from the Supreme Court’s World War II decision of Korematsu, through the Warren Court and the Communist threat, then ending with the Rehnquist Court’s recent decisions of Hamdi, Rasul, and Padilla. In addition, the Computer Assisted Passenger Pre-screening System [CAPPS II] is used as an illustration of a current erosion of individual rights as a result of the “war on terror.” Finally, the note concludes by suggesting that when the war-making branches, based on a perceived threat to national security, infringe on constitutionally protected rights, the Supreme Court must be judicially active to counterbalance the depravation

The Dogmatic and Practical Implications of Article 78 of the United Nations Convention on Contracts for the International Sale of Goods (CISG) on Claims for Interest under International Sales Contracts.

The paper deals with the current controversy in regard to the interpretation of article 78 Convention on the International Sale of Goods (CISG). In particular, the determination of the interest rate is discussed in detail

The Democratic Public Domain: Reconnecting the Modern First Amendment and the Original Progress Clause (a.k.a. Copyright and Patent Clause)

If the Progress Clause, a.k.a. the Patent and Copyright Clause, of the U.S. Constitution had been construed when its original meaning was still obvious, United States law would be far different. In this area at least, the Drafters’ Constitution was much less aristocratic than the modern (mis)reading. The original meaning of the Progress Clause, furthermore, should have stimulated a more communitarian First Amendment, the type of First Amendment currently being suggested by leading First Amendment scholars such as Jack Balkin

The Tragic Foundations of Human Rights

The longing for a theoretical foundation to support the aspiration for universal (international) human rights always precedes the construction of any particular foundation. This essay examines the longing for foundations in its relation to the truth of universal human suffering. Using the phenomenological method, it uncovers a certain moment of distress that shows itself in the form of longing for the constant presence of an authoritative ground that would obscure universal suffering and give focus to the phenomenon of infinite ethical responsibility that attends the I’s encounter with the suffering of others. Thought hungers for a responsibility-relieving warrant (A) for action (B) that underwrites the movement “A to B.” The essay suggests, in compassion, that awakening to the real problem of human suffering requires a quasi-religious attention to the tragedy of universal human suffering, and a radicalized compassion that breaks free of all texts

Law in the Cultivation of Hope

In recent years scholars have begun to question the longstanding dichotomization of (legal) reason and the passions, and have offered significant understanding of the connection of law and the emotions. Much of this work, however, has been done within a fairly narrow ambit. This Article seeks to broaden this scholarship in two ways. First, it points to an unexplored relation between law and the emotions: the role of law in cultivating the emergence of emotions. And second, it moves beyond the negative emotions, and directs attention to positive emotions and their interplay with the law outside the criminal context. Following these two new directions, the Article focuses on the role of law in the cultivation of hope. It suggests a role for law that has not been explored before: facilitating the emergence of positive emotions, and thus empowering law’s beneficiaries. The Article first uncovers the structure of hope as an emotion, and identifies the necessary qualities for developing individual hopes: the ability to imagine new possibilities not encompassed by one’s present condition; a sense of agency sufficient to envision oneself pursuing distant objectives; and adequate resources that enable bringing such goals about. After characterizing individual hope, the Article turns to a less-discussed possibility: the active, external effort to cultivate hope in people whose deprivation prevents them from envisioning and pursuing alternative futures for themselves. A profile of a beneficial effort to cultivate hope in others is then developed, drawing on the narrative of the award-winning documentary film “Born into Brothels”. This original profile reflects five elements that are central to such an effort: communicating recognition and vision; introducing an activity that allows for individuation; providing resources; supporting agency; and fostering solidarity. However, given the systematic character of the social problems that give rise to despair, individual efforts at cultivation may not suffice and institutional interventions, including those secured by law, may be indispensable. This Part concludes by discussing the perils entailed in such an enterprise. Finally the Article applies its analysis to the cultivation of hope through law. It explores the example of Project Head Start, which was enacted as a core component of the War on Poverty. For decades the Project has served to engage poor children and their families in new opportunities for personal and collective growth. Remarkably, this study finds many of the characteristics of a successful cultivation of hope in certain features of the Project that are required or facilitated by law: the involvement of parents in the operation of the Project\u27s local centers, and the strong solidarity that has emerged among parents, and between parents and Project staff. It further illustrates how some of the predicted risks of cultivating hope have materialized in this context, while others have not. The Article concludes by calling for further investigation of the promising notion that, by drawing on its capacity to cultivate positive emotions, the law may play an empowering role in the lives of individuals and groups

Never Get Out\u27a the Boat: Stenberg v. Carhart and the Future of American Law

In this essay, the haunting scenes from the film Apocalypse Now serve as the backdrop for an examination of Stenberg v. Carhart and the meaning that this case holds for the future of American law and culture. The movie tells the story of Captain Benjamin Willard, a special forces officer in Vietnam who travels up-river on a patrol boat in search of a renegade American colonel whom Willard has been ordered to “terminate.” The major thematic concerns of the film are morality, violence, candor, and the tenuous nature of civilization. Indeed, life on board the boat, such as it is, represents civilization. This contrasts with the jungle, which represents the absence of the moral order that makes social life possible. This absence allows for the exercise of freedom without judgment. Thus, in one scene, the viewer is warned that you should “never get out’a the boat” unless you are prepared to “go all the way.” In the essay, we argue that in Stenberg v.Carhart the Supreme Court “got out’a the boat” and went “all the way.” Stenberg held that a state may not ban the procedure commonly known as partial birth abortion. Stated more bluntly, the Court held that the protection of the law does not extend to a child in the process of being born. Incredibly, the humanity of the victim of this procedure is never addressed in the Court’s opinion. Here the Stenberg majority differs significantly from the Court in Roe v. Wade, which appeared to struggle with “the difficult question of when life begins.” In Stenberg, the Court knows that the life at issue has already begun. Indeed, it is in the process of being born. By licensing the brutal killing of what is undeniably an innocent human being, the Court turns its back on civilization and marches proudly into the jungle. Plainly, law is an essential component of authentic civilization. Law as such must embody the principle of equal concern and respect for every human being and the principle of ordered liberty. The essay provides examples of how, since the adoption of the 14th Amendment, these principles have been at the heart of American constitutional law. We argue that, with Stenberg, the Court has abandoned the concept of ordered liberty in favor of the concept of liberty as license. Moreover, in adopting what it believes is a maximal conception of human freedom, the Court has undermined the very notion of equal concern and respect. Here we contrast the abortion license with the Court’s treatment of the right to free speech as well as its decisions concerning capital punishment. We conclude the piece by arguing that if the Court truly believes that the benefits of constitutional personhood do not extend to a child in the process of being born, then it is incumbent on the Court to explain why this is so. Indeed, the rule of law demands that the Court explain its now unspoken criteria for constitutional personhood. The piece is especially timely given that the Supreme Court has agreed to decide the constitutionality of the federal partial birth abortion ban. Carhart v. Gonzales, 413 F.3d 791 (8th Cir. 2005), cert. granted Gonzales v. Carhart, __ U.S. __ (2006). Thus, the Court is once again faced with the choice of embracing authentic civilization or promoting barbarism under the appearance of law