Agency As Principal

A presumption of a principal-agentrelationship between the elected branches and the bureaucracy permeates administrative law and scholarship. This typical framework consistently casts agencies as agents, never principals. This Article challenges that assumption and explores the ways in which agencies can act as principals to the elected branches. Agencies, in fact, commonly manipulate the elected branches. The challenge posed by the Article to the typical understandingof the relationship between agencies and the elected branches not only provides a more nuanced understanding of the modern administrative state but also raises serious questions about administrative law, which regularly employs this same faulty assumption

Emerging Commons and Tragic Institutions

For the past forty years, scholars have developed an immense literature devoted to understanding and solving the tragedy of the commons. The most prominent solutions to this tragedy have focused on building and maintaining stable institutions. This Article reexamines this foundational literature by exploring the costs of stability. In many cases, far more than is generally recognized, the way we value the commons changes. When values change, stable institutions that once made perfect sense become rigid institutions that block change. This Article explains how institutions most able to solve the tragedy of the commons often cause a tragedy of another sort. To ground theory in practice, this Article examines three case studies: the United States\u27 governance of the radio spectrum, the founding of Yellowstone National Park, and western water law. This Article ends by proposing a set of draft principles to help us overcome institutional rigidity. For decades, commons scholarship has focused on the tragedy of overuse. This Article re-frames the commons debate, explicitly taking into account not only the benefits of stable institutions but also their costs

When Agencies Go Nuclear: A Game Theoretic Approach to the Biggest Sticks in an Agency\u27s Arsenal

A regulatory agency’s arsenal often contains multiple weapons. Occasionally, however, an agency has the power to completely obliterate its regulatory targets or to make major waves in society by using a “regulatory nuke.” A regulatory nuke is a tool with two primary characteristics. First, it packs power sufficient to profoundly impact individual regulatory targets or significantly affect important aspects of society or the economy. Second, from the perspective of the regulatory agency, it is politically unavailable in all but the most extreme situations. They are found in many corners of the federal bureaucracy. This Article illustrates that even when individual regulatory nukes get our attention, we often think about these weapons in unproductive ways. Typically, regulatory nukes are approached in a bipolar way. On the one hand, they may be seen as regulatory anomalies with little relevance to most regulated entities. On the other hand, particularly if an agency has launched its regulatory nuke, the launch becomes part of agency lore and the story is of the destruction left in its wake.Drawing on the Nobel Prize–winning game theory developed by Thomas Schelling, this Article moves beyond the dud/mushroom cloud dichotomy and recasts the regulatory nuke as an important factor that influences the calculus of regulation. This analysis suggests that agencies often get mileage out of regulatory nukes by pointing their weapons rather than firing them: the power of the tool is often leverage in regulatory diplomacy — for threats, posturing, and coercion. Although this Article is based on game theory, it also provides a wealth of examples that work to illustrate the real-world importance of the theory to many aspects of the administrative state.

Addressing Global Climate Change in an Age of Political Climate Change

For a number of years, many within the environmental legal community have advocated an all-out attack strategy of forcing the United States to address climate change by bringing novel lawsuits under existing environmental laws. In 2007, with the seminal case of Massachusetts v. EPA, it appeared that those advocating this strategy had a winning game plan. That sense grew and solidified when the Obama Administration came to power. However, over the past several years, we have seen a countervailing movement embodied in a growing resentment towards EPA and climate change policy in general. This movement has mobilized into a powerful political force. This Article raises the following question to those who want the United States to take action on climate change: given the backlash we have seen, is this no-holds-barred approach to force action on climate change the best way forward? While admittedly the answer to this question is a difficult one, this Article ultimately argues that it is not

Governing the Presidential Nomination Commons

States jockeying to hold primaries and caucuses as early as possible has become the central theme of the presidential primary system. While the trend of racing to vote is not new, it has increased alarmingly. In 2008, more than half the states held contests by the first week of February. This free-for-all hurts the democratic process by encouraging uninformed voting, emphasizing the role of money in campaigns, and pressing candidates to rely on sound-bite campaigning. Because the presidential nomination is one of the most important decisions left to voters in the United States, this problem is well-recognized. It is also widely misunderstood. This Article casts the problem in a different light, demonstrating that the front-loading of the nomination process is a classic tragedy of the commons. Recognizing the problem as a commons dilemma provides a powerful explanation for the trend towards earlier primaries and, more importantly, provides insights into how best to reform the nomination system

Addressing Global Climate Change in an Age of Political Climate Change

For a number of years, many within the environmental legal community have advocated an all-out attack strategy of forcing the United States to address climate change by bringing novel lawsuits under existing environmental laws. In 2007, with the seminal case of Massachusetts v. EPA, it appeared that those advocating this strategy had a winning game plan. That sense grew and solidified when the Obama Administration came to power. However, over the past several years, we have seen a countervailing movement embodied in a growing resentment towards EPA and climate change policy in general. This movement has mobilized into a powerful political force. This Article raises the following question to those who want the United States to take action on climate change: given the backlash we have seen, is this no-holds-barred approach to force action on climate change the best way forward? While admittedly the answer to this question is a difficult one, this Article ultimately argues that it is not

Our Constitutional Commons

While much has been written about the U.S. Constitution, very little, if anything at all, has been said about the ways in which the Constitution shares attributes with the commons. This article examines the Constitution and the efforts to influence the shape and scope of its application through the lenses developed by scholars for assessing both common good and public good resources. Focusing on these interrelated lenses provides a unique perspective on both the U.S. Constitution and those attempting to influence its text and its interpretation. The synergy and interaction between the common good and public good dimensions of the Constitution not only provide a more holistic understanding of its institutional design and mode of operation, but also provide new insights into the potential damage future constitutional conflicts may cause to the stability and strength of the U.S. Constitution and how that damage may be avoided

Our Global Commons

Desde su descubrimiento, los antibióticos han marcado un hito importante en el tratamiento de enfermedades y han permitido la realización de intervenciones quirúrgicas antes consideradas como letales. Sin embargo, el uso excesivo de antibióticos puede alterar la microbiota, causando disbiosis y aumentando la predisposición al desarrollo de diversas patologías a largo plazo. Antibióticos de amplio espectro como la Oxitetraciclina (OTC) se utilizan de manera desmesurada en diversas industrias agroalimentarias. La relación entre el mecanismo de acción de OTC y alteraciones de la microbiota es aún desconocida. Actualmente, se conoce que OTC funciona como inhibidor de la síntesis de proteínas durante la fase de elongación. Dicho fase de la síntesis de proteínas es altamente conservada entre las bacterias y no explicaría el efecto diferenciado entre géneros bacterianos asociados a disbiosis. Al unirse a la subunidad menor 30S del ribosoma, existe la posibilidad de que OTC también actúe en otras fases de la síntesis proteica. Entre ellas destaca la iniciación de la traducción del ARNm al presentar al menos dos mecanismos alternativos, utilizados diversamente entre las bacterias. El primero utiliza los factores de iniciación IF1, IF2 e IF3, mientras que el segundo utiliza principalmente IF1 e IF2. En el presente estudio se evalúa a OTC como posible inhibidor de la iniciación de la síntesis de proteínas dependiente de los tres factores mediante métodos bioquímicos y análisis informático de modelamiento estructural. Los resultados indican que IF1 es susceptible a OTC, probablemente por su posicionamiento cercano al antibiótico en el ribosoma. Como consecuencia, OTC induce una mayor estabilización de IF1 en el ribosoma, que va en aumento a través de los complejos intermediarios de iniciación, alcanzando un incremento del 40%. La estabilización de IF1, reducción de su capacidad de disociación del ribosoma, conllevaría a una inhibición de la formación del complejo de iniciación 70S. Los resultados aquí expuestos sugieren un nuevo mecanismo de acción de OTC durante la iniciación de la síntesis de proteínas. El entendimiento del nuevo mecanismo de acción de OTC contribuye con una explicación novedosa y base para el entendimiento de disbiosis mediada por el fármaco. Además, los resultados proporcionan las bases de futuras investigaciones para el desarrollo de nuevos antibióticos que actúen en el mismo blanco molecular.Antibiotics have stablished an important milestone since their discovery, allowing the treatment of infectious diseases and surgical procedures otherwise considered lethal. However, recent studies show that the use of antibiotics can alter the microbiota, causing dysbiosis and leading to the development of diverse pathologies. In particular, broad- spectrum antibiotics such as Oxytetracycline (OTC) are widely used in agricultural and food industries. The relationship between the molecular mechanism of OTC and microbiota modifications is still unknown. The current model suggests that OTC inhibits the elongation phase of protein synthesis inhibitor. This phase of protein synthesis is highly conserved among bacteria and cannot explain the differentiated effect of OTC among bacterial genus. OTC could act in other phases of protein synthesis since the drug binds to 30S small ribosomal subunit. Among these, mRNA translation initiation stands out since it is represented by at least two alternative mechanisms in bacteria. The first mechanism uses initiation factors IF1, IF2 and IF3, while the second uses mainly IF1 and IF2. In the present study, OTC has been evaluated as a potential protein synthesis inhibitor acting at initiation of translation. Particularly, the study focuses in the mechanism that uses all three initiation factors employing biochemical methods and computer analysis of structural modelling. The results indicate that IF1 is susceptible to OTC, probably due to the near positioning with respect to the antibiotic in the ribosome. Consequently, OTC increases the stabilization of IF1 in the ribosome up to 40% along all intermediate initiation complexes. IF1 stabilization would inhibit of 70S initiation complex formation, suggesting a new mechanism of action for OTC during translation initiation. This finding would explain how OTC causes dysbiosis and provides further basis for future research of new antibiotics with a similar molecular mechanism.Tesi

Testing Transparency

In modern democracies, governmental transparency is thought to have great value. When it comes to addressing administrative corruption and mismanagement, many would agree with Justice Brandeis’s observation that sunlight is the best disinfectant. Beyond this, many credit transparency with enabling meaningful citizen participation. But even though transparency appears highly correlated with successful governance in developed democracies, assumptions about administrative transparency have remained empirically untested. Testing effects of transparency would prove particularly helpful in developing democracies where transparency norms have not taken hold or only have done so slowly. In these contexts, does administrative transparency really create the sorts of benefits attributed to it? Transparency might grease the gears of developed democracies, but what good is grease when many of the gears seem to be broken or missing entirely? This Article presents empirical results from a first-of-its-kind field study that tested two major promises of administrative transparency in a developing democracy: that transparency increases public participation in government affairs and that it increases government accountability. To test these hypotheses, we used two randomized controlled trials. Surprisingly, we found transparency had no significant effect in almost any of our quantitative measurements, although our qualitative results suggested that when transparency interventions exposed corruption, some limited oversight could result. Our findings are particularly significant for developing democracies and show, at least in this context, that Justice Brandeis may have oversold the cleansing effects of transparency. A few rays of transparency shining light on government action do not disinfect the system and cure government corruption and mismanagement. Once corruption and mismanagement are identified, it takes effective government institutions and action from civil society to successfully act as a disinfectant