36 research outputs found

    Adaptation Nation: Three Pivotal Transitions in American Law & Society Since 1886

    Get PDF

    Securing the Nation: Law, Politics, and Organization at the Federal Security Agency, 1939–1953

    Get PDF
    American public law is affected by two important dynamics impacting the relationship between citizens and their government: how the executive branch defines national security, and how politicians compete to secure control of the vast public organizations through which governments implement the law. This Article analyzes the intersection of these dynamics by investigating the now-forgotten history of the US Federal Security Agency (FSA) and drawing perspectives from separation of powers, organization theory, and the study of American political development. In 1939, the Roosevelt White House overcame strong political opposition to centralize vast legal responsibilities within the FSA. Soon after its creation, the agency had acquired responsibility for social security, education, drug regulation, protection of the food supply, civil defense preparedness, supplying employees to war-related industries, facilitating the relocation of Japanese-Americans, antiprostitution enforcement, and biological weapons research. By 1953, the FSA engendered one of the most important American bureaucracies of the twentieth century: the Department of Health, Education, and Welfare. Yet little is known about precisely how or why the White House fought to create the FSA, why the agency pervasively mixed domestic regulatory and national defense functions both before and after World War II, or what its creation wrought for the legal mandates entrusted to the agency. This Article\u27s analysis reveals how, on the eve of World War II, the White House sought to use the restructuring to achieve greater control over the agency\u27s multiple domains of legal jurisdiction by building oversight capacity in an organizational environment more congenial to the bureaus\u27 functions. It then used that control to publicly promote a broader conception of the security issue that held the prospect of more thoroughly protecting domestic programs important to the administration. And by rendering ambiguous the distinction between domestic and international security functions, the administration enlarged support for some of its signature programs at a time when the New Deal legislative coalition was eroding. In effect, the agency\u27s amalgam of legal functions epitomized the administration\u27s ambitious conception of security, which became sufficiently elastic to encompass legal responsibilities now routinely segregated into domains involving social services, economic security, health regulation, and geostrategic national defense. These dynamics illustrate limitations in prevailing theories of law and organization emphasizing deliberately engineered bureaucratic failure or purely symbolic position-taking. They also showcase the historical connection between the design of public agencies, separation of powers, and the ambiguities inherent in the definition of security as a category of government responsibility. The recent spike of interest in homeland security is furnishing similar opportunities to reshape the domestic regulatory state

    The Political Economy of the Opioid Epidemic

    Get PDF
    Public health problems have a political economy rooted largely in public and private laws that both reflect the distribution of power in society and shape its policy responses. In this Article, we apply this perspective to the U.S. opioid crisis, which was triggered by a quadrupling of opioid prescribing beginning in the mid-1990s. Such staggering increases in opioid use are impossible to understand without unpacking the incentives and institutional pressures associated with the distribution and use of addictive legal drugs, particularly how those pressures can dilute the substantive goals and efficacy of regulatory governance

    Governing Security

    Get PDF
    The Ohio State University Mershon Center for International Security StudiesIn "Governing Security," Cuéllar takes up a complex and timely question at the intersection of law and society. Who has the power to design federal agencies, and who sets priorities when deciding on the most urgent security problems facing our country? Governing Security explores how these two questions are connected by investigating the hidden origins of two of the most powerful agencies in the federal government. Even after Franklin Roosevelt failed in his drive to reorganize federal courts during his second term and faced the prospect of a costly war, he kept on pressing for authority to reorganize the executive branch and created a vast agency called the Federal Security Agency. Six decades later, the Bush Administration pursued one of the largest reorganizations in modern history after initially opposing the creation of a Department of Homeland Security in the wake of the September 11 attacks. This book investigates the story of these two agencies in order to illuminate the complex relationship between public law, executive organization, and the contested meaning of national security. Using a mix of qualitative analysis of agency structure and budgets, doctrinal evaluation of legal developments, scrutiny of legislation and executive orders, and archival research, this work exposes the interplay between executive power and agency structure in shaping the nation’s security priorities. By analyzing these developments, the book shows how the impact of public law ultimately depends on how politicians go about security control of the vast agencies that implement statutes and regulations, and on how those agencies are in turn used to define the contested concept of security.Mershon Center for International Security StudiesEvent Web Page, Streaming Video, Event Photo

    Deciding Whether Software Will Eat the Bureaucracy

    No full text
    With widely-circulating media accounts that a foreign power used cyber-intrusions in an effort to affect a recent American national election, it is not radical to suggest that reliance on computers to make agency decisions is a risky enterprise. But in some ways, cybersecurity problems are just the tip of the iceberg. From cybersecurity risks to changes in public deliberation, government agencies’ use of automation and artificial intelligence will pose numerous challenges for the administrative state. Although no simple compass or rubric exists to decide precisely how to navigate these uncharted waters, the following ideas offer a few possibilities for how agencies, policymakers, and the courts could help increase society’s capacity to make informed choices about the use of automation in the administrative state. First, it may be worth exploring how we may better police the extent of human decision-maker engagement with automated expert systems. Until now, the courts have been reluctant to probe the actual decision-making of administrative leaders under the so-called presumption of regularity that emerged over time following Morgan v. United States. In rejecting a challenge to an order by the Secretary of Agriculture fixing maximum rates to be charged by market agencies at the Kansas City Stockyards, the Supreme Court in Morgan declined to allow an intrusive analysis of the Secretary’s actual decision-making process and considerations. “It was not the function of the court to probe the mental processes of the secretary in reaching his conclusions,” the Court concluded, “if he gave the hearing which the law required.” With courts loath to stray from this presumption of regularity over the decades, it has persisted—and with it, courts’ unwillingness to police exactly by whom a decision is taken. As reliance on information technology increases, courts and policymakers should consider taking more seriously requiring accountability to be lodged in specific decision-makers. Perhaps it is time to consider recalibrating the “presumption of regularity”—to ensure that agency officials have clearly recognized the risks of relying on automated analytical techniques that are too complex or opaque for officials themselves to understand entirely. As a practical matter, this approach raises difficult further questions about the scope of discovery in suits to review administrative action, but perhaps those questions are worth facing, given the risk that decision-makers will rely on algorithms they do not fully understand. Second, on a related note, arbitrary and capricious review may prove most meaningful if it encompasses whether there is consistency between substantive explanations offered in, say, justifications for rulemaking and the analytical techniques actually used to make decisions. It is one thing to justify a program to freeze assets associated with organizations that meet a specific, statutorily-grounded threshold of suspicion; it is quite another to deploy algorithms that entirely redefine that threshold, dynamically, in response to new information. Attention to cybersecurity risks may also fit within the context of arbitrary and capricious review. Third, agencies must accelerate efforts to engage scholars, civil society, and other stakeholders in increasing our understanding of how to harness the analytical capacity of automated computer systems without eroding our sense of how decisions are made. As part of this process, agencies should consider engaging in medium-to-long-term planning about how they would address the use of automation within the rulemaking process. The U.S. Food and Drug Administration could further investigate how trends in artificial intelligence could change the agency’s use of outside experts in the drug approval process. Officials at the U.S. Department of Labor may face unexpected challenges arising from labor market changes driven by automation. Virtually all agencies will benefit from explicitly experimenting with different models of decision-making that aim to leverage artificial intelligence technologies while keeping humans in the loop. These efforts will matter because, increasingly, agencies and entire governments will face the challenge of how to instruct complex machines that will work across domains and agency jurisdiction, aggregate data, and guide human decisions. Government agencies seem to face trouble even when updating conventional information technology infrastructure, so the ability to integrate artificial intelligence into administrative tasks may seem far-fetched. Yet ironically, such weakness could strengthen the case for using systems that adapt and learn. Such systems may prove crucial to reducing the gap between a machine’s capacity and that of a person familiar with an agency’s culture and organizational routines. As a general matter, as computer systems that perform administrative tasks become adaptive and capable of modifying themselves, the more they are likely to avoid the problems of efficacy and cost that sometimes plague government information technology projects. But as software becomes more analytically sophisticated, and in particular, more adaptive to the point of being able to rewrite much of its own code, it will be more difficult to predict longer-term consequences ranging from subtle changes in function to unexpected rapid growth of analytical capacity. As machines become more capable of optimizing to achieve the goals we articulate, higher stakes attach to how we articulate those goals and the trade-offs we allow. Crucial to our ability to navigate these dilemmas will be a cadre of lawyers and policymakers who understand artificial intelligence, its possibilities and limits, and particularly its capacity to adapt in unexpected ways. Lawyers and policymakers will almost certainly need to adjust their approaches to using automation in the administrative state, since different scenarios involving automation are possible, and some will prove far more difficult to manage than others. What makes little sense is to ignore the dilemmas that society will confront as the administrative state comes increasingly to rely on automated systems. Nor is it justified to assume that human decision-making is so fundamentally flawed that it must be tamed by computer system. At its core, the administrative state is about reconciling calculations of social welfare with procedural constraints. It is an enterprise that pivots in subtle and profound ways on human institutions, assumptions, and aspirations—however imperfectly fulfilled—for deliberation. An alternative that promises to make the regulatory process eminently more tractable, technically precise, and less messy by leaning on algorithms and neural networks will likely remain alluring because collective human decisions are as messy and imperfect as human societies are themselves. The biggest risk associated with automation is to assume that most of what concerns the administrative state can be made simpler, more predictable, cheaper, and more effective without any trade-offs. Whether that perspective originates from a deep-seated view that governing is simple or from the seemingly-anodyne choices made by a software engineer deciding how to visually present the results of a complex deep learning algorithm, the problem with that perspective is eliding precisely the sort of deliberation about the nature of social welfare that justifies the administrative state in the first place

    The Untold Story of Al Qaeda\u27s Administrative Law Dilemmas

    No full text

    Securing the Nation: Law, Politics, and Organization at the Federal Security Agency, 1939–1953

    No full text
    American public law is affected by two important dynamics impacting the relationship between citizens and their government: how the executive branch defines national security, and how politicians compete to secure control of the vast public organizations through which governments implement the law. This Article analyzes the intersection of these dynamics by investigating the now-forgotten history of the US Federal Security Agency (FSA) and drawing perspectives from separation of powers, organization theory, and the study of American political development. In 1939, the Roosevelt White House overcame strong political opposition to centralize vast legal responsibilities within the FSA. Soon after its creation, the agency had acquired responsibility for social security, education, drug regulation, protection of the food supply, civil defense preparedness, supplying employees to war-related industries, facilitating the relocation of Japanese-Americans, antiprostitution enforcement, and biological weapons research. By 1953, the FSA engendered one of the most important American bureaucracies of the twentieth century: the Department of Health, Education, and Welfare. Yet little is known about precisely how or why the White House fought to create the FSA, why the agency pervasively mixed domestic regulatory and national defense functions both before and after World War II, or what its creation wrought for the legal mandates entrusted to the agency. This Article\u27s analysis reveals how, on the eve of World War II, the White House sought to use the restructuring to achieve greater control over the agency\u27s multiple domains of legal jurisdiction by building oversight capacity in an organizational environment more congenial to the bureaus\u27 functions. It then used that control to publicly promote a broader conception of the security issue that held the prospect of more thoroughly protecting domestic programs important to the administration. And by rendering ambiguous the distinction between domestic and international security functions, the administration enlarged support for some of its signature programs at a time when the New Deal legislative coalition was eroding. In effect, the agency\u27s amalgam of legal functions epitomized the administration\u27s ambitious conception of security, which became sufficiently elastic to encompass legal responsibilities now routinely segregated into domains involving social services, economic security, health regulation, and geostrategic national defense. These dynamics illustrate limitations in prevailing theories of law and organization emphasizing deliberately engineered bureaucratic failure or purely symbolic position-taking. They also showcase the historical connection between the design of public agencies, separation of powers, and the ambiguities inherent in the definition of security as a category of government responsibility. The recent spike of interest in homeland security is furnishing similar opportunities to reshape the domestic regulatory state
    corecore