Auer Deference: Doubling Down on Delegation\u27s Defects

Together with the better-known Chevron deference rule, the doctrine articulated in Auer v. Robbins two decades ago—which makes reasonable administrative constructions of ambiguous administrative rules binding on courts in most circumstances—has become a focal point for concerns about the expanding administrative state. Auer deference, even more than Chevron deference, enlarges administrative authority in ways that are at odds with basic constitutional structures and due process requirements. Objections to Auer have provided cogent reasons for why courts should not grant deference to administrative interpretations merely because an agency’s rule is unclear. The most commonly voiced objections, however, do not explain why Congress should be disabled in all instances from granting administrators discretionary authority over rule interpretation—even in settings that do not raise serious risks of partiality or unfair surprise in administrative construction. Examining the relationship between statutorily directed deference and constitutional-structural principles clarifies the essential underlying objection to Auer and the limits of that objection. When Congress by law confers discretionary authority that does not exceed its constitutional power to delegate functions to an administrator, courts should respect that assignment of authority, unless it violates other specific constitutional commands. Yet, when delegations are at most only arguably consistent with the Constitution, extending deference—especially expanding deference as Auer does in successive determinations—exacerbates delegations’ difficulties. A reinvigorated nondelegation doctrine would solve the major Auer problem directly, and elimination of Auer-like deference would clearly be preferable to retaining the doctrine in its current form. Short of that, demanding that the statutory basis for deference is clearly articulated would provide a modest first step in cabining problems associated with constitutionally questionable delegations of lawmaking authority. Those who embrace the rule of law, whether advocates or opponents of the modern administrative state, should support that step

How explicable are differences between reviews that appear to address a similar research question? A review of reviews of physical activity interventions

Background Systematic reviews are promoted as being important to inform decision-making. However, when presented with a set of reviews in a complex area, how easy is it to understand how and why they may differ from one another? Methods An analysis of eight reviews reporting evidence on effectiveness of community interventions to promote physical activity. We assessed review quality and investigated overlap of included studies, citation of relevant reviews, consistency in reporting, and reasons why specific studies may be excluded. Results There were 28 included studies. The majority (n = 22; 79%) were included only in one review. There was little cross-citation between reviews (n = 4/28 possible citations; 14%). Where studies appeared in multiple reviews, results were consistently reported except for complex studies with multiple publications. Review conclusions were similar. For most reviews (n = 6/8; 75%), we could explain why primary data were not included; this was usually due to the scope of the reviews. Most reviews tended to be narrow in focus, making it difficult to gain an understanding of the field as a whole. Conclusions In areas where evaluating impact is known to be difficult, review findings often relate to uncertainty of data and methodologies, rather than providing substantive findings for policy and practice. Systematic ‘maps’ of research can help identify where existing research is robust enough for multiple in-depth syntheses and also show where new reviews are needed. To ensure quality and fidelity, review authors should systematically search for all publications from complex studies. Other relevant reviews should be searched for and cited to facilitate knowledge-building

The role of art-making in identity maintenance: Case studies of people living with cancer

The aim of this qualitative research was to understand why some people with cancer take up art as a leisure activity, and how visual art-making in daily life might support identity maintenance/ reconstruction. The study forms part of a larger project with people who view art-making as a resource for living with chronic illness. In order to provide a detailed, holistic analysis, the paper focuses on the accounts and artwork of three participants, two women (aged 47 and 59) each with breast cancer, and a man (aged 51) with stomach and lung cancer. The participants turned to art after a process of reflection but did not necessarily reject their pre-illness lifestyles or selves. Rather, art-making afforded many opportunities to retain familiar personal and social identities, and to resist being dominated by labels related to their illness. A practical implication is that people coping with cancer may need not only cognitive and emotional support, but opportunities to find meaningful activities. Such activities can be understood to have a powerful role in maintaining a familiar, positive identity in cancer, and providing a resource for coping

Why Has Unemployment in Algeria Been Higher than in MENA and Transition Countries?

This paper analyzes the determinants of labor market performance in Algeria. When the model is estimated with panel data on a sample of MENA and transition countries for 1995–2005, the results suggest that lower growth in labor productivity in Algeria is associated with higher unemployment than the sample average, though recent positive terms of trade shocks have helped Algeria reduce the differential. Labor market rigidities and labor taxation do not seem to explain why unemployment is higher in Algeria than in other countries. The results are robust to various panel econometric methods and instrumental variable estimates.Unemployment, Labor market institutions, Macroeconomic shocks

Why Has Unemployment in Algeria Been Higher than in MENA and Transition Countries?

This paper analyzes the determinants of labor market performance in Algeria. When the model is estimated with panel data on a sample of MENA and transition countries for 1995–2005, the results suggest that lower growth in labor productivity in Algeria is associated with higher unemployment than the sample average, though recent positive terms of trade shocks have helped Algeria reduce the differential. Labor market rigidities and labor taxation do not seem to explain why unemployment is higher in Algeria than in other countries. The results are robust to various panel econometric methods and instrumental variable estimates.Unemployment;Labor market institutions;Macroeconomic shocks

Why Is the Japanese Conviction Rate So High?

Conviction rates in Japan exceed 99 percent -- why? On the one hand, because Japanese prosecutors are badly understaffed they may prosecute only their strongest cases and present judges only with the most obviously guilty defendants. On the other, because Japanese judges can be reassigned by the administrative office of the courts if they rule in ways the office does not like, judges may face biased career incentives to convict. Using data on the careers and opinions of 321 Japanese judges, we conclude that judges who acquit do indeed have worse careers following the acquittal. On closer examination, though, we find that the punished judges are not judges who acquitted on the ground that the prosecutors charged the wrong person. Rather, they are the judges who acquitted for reasons of statutory or constitutional interpretation, often in politically charged cases. Thus, the apparent punishment of acquitting judges seems unrelated to any pro-conviction bias at the judicial administrative offices, and the high conviction rates probably reflect low prosecutorial budgets instead.Japan, judges, political economy, prosecutors, convictions

Montana Journalism Review, 1994

If not Saddam, Why not Tonya? -- When is a King Not a King? -- The Princess and the Press -- An American Reporter in Japan -- The Mountain Lion in Winter -- Censorship through the Eyes of an Indian -- Running Down the Day with Larry Frost -- Black Friday in Butte -- The Winner of Our Discontent -- Living on the Edge -- Forget Compassion-Give Me News -- The Little Network that Could -- Journalists Line up behind ‘Online

Conspiracy Theory

Over one-quarter of all federal criminal prosecutions and a large number of state cases involve prosecutions for conspiracy. Yet, the major scholarly articles and the bulk of prominent jurists have roundly condemned the doctrine. This Article offers a functional justification for the legal prohibition against conspiracy, centering on psychological and economic accounts. Advances in psychology over the past thirty years have demonstrated that groups cultivate a special social identity. This identity often encourages risky behavior, leads individuals to behave against their self-interest, solidifies loyalty, and facilitates harm against non-members. So, too, economists have developed sophisticated explanations for why firms promote efficiency, leading to new theories in corporate law. These insights can be reverse-engineered to make conspiracies operate less efficiently. In reverse-engineering corporate-law principles and introducing lessons from psychology, a rich account of how government should approach conspiracy begins to unfold. In particular, law enforcement strives to prevent conspiracies from forming by imposing high up-front penalties for joiners but uses mechanisms to harvest information from those who have joined and decide to cooperate with the government. Traditional conspiracy doctrines such as Pinkerton liability and the exclusion from merger not only further cooperation agreements, they also make conspiracies more difficult to create and maintain by forcing them to adopt bundles of inefficient practices. The possibility of defection forces the syndicate to use expensive monitoring of its employees for evidence of possible collusion with the government. Mechanisms for defection also break down trust within the group and prime members to think that others are acting out of self-interest. The Article concludes by offering a variety of refinements to conspiracy law that will help destabilize trust within the conspiracy, cue the defection of conspirators, and permit law enforcement to extract more information from them

Mortgage choices and housing speculation

We describe a rational expectations model in which speculative bubbles in house prices can emerge. Within this model both speculators and their lenders use interest-only mortgages (IOs) rather than traditional mortgages when there is a bubble. Absent a bubble, there is no tendency for IOs to be used. These insights are used to assess the extent to which house prices in US cities were driven by speculative bubbles over the period 2000-2008. We find that IOs were used sparingly in cities where elastic housing supply precludes speculation from arising. In cities with inelastic supply, where speculation is possible, there was heavy use of IOs, but only in cities that had boom-bust cycles. Peak IO usage predicts rapid appreciations that cannot be explained by standard correlates and this variable is more robustly correlated with rapid appreciations than other mortgage characteristics, including sub-prime, securitization and leverage. Where IOs were popular, their use does not appear to have been a response to houses becoming more expensive. Indeed, their use anticipated future appreciation. Finally, consistent with the reason why lenders prefer IOs, these mortgages are more likely to be repaid earlier or foreclose. Combined with our model, this evidence suggests that speculative bubbles were an important factor driving prices in cities with boom-bust cycles.Mortgage loans ; Mortgage-backed securities ; Housing - Prices