Reforming the Administrative Procedure Act: Democracy Index Rulemaking

This Essay argues that the current regime of administrative law should be changed by creating legal incentives for agencies to involve the public in the rulemaking process via democracy index rulemaking. Democracy index rulemaking would create a clear incentive for agencies to involve the public by requiring that the more participation that occurred during the rulemaking process, the more deference that such an agency rule would receive in court. An agency could receive this deference by using normal notice and comment procedures and receiving a large number of relevant and non-repetitive comments on a proposed rule, with the precise amount of deference then tied to the number of comments received. Alternatively, the agency could use a special procedure, called deliberative notice and comment, which would involve jury deliberations (involving a set of juries composed of stakeholders as well as of members of the general public) regarding the proposed administrative rule. An agency using this special democratic process would guarantee itself deference. Either way, democracy index rulemaking would create a system that would encourage public participation, with all of its virtues, while at the same time avoiding many of the negatives of other regimes of public participation

The Narrowing of Federal Power By the American Political Capital

This Essay--prepared for a symposium hosted by the William & Mary Bill of Rights Journal on the future of the District of Columbia--argues that American federal power can be better understood by considering the features of the metropolitan area that houses the most important parts of the American federal government. In other American metropolitan areas and in most capital metropolitan areas elsewhere in the world, local life features multiple and diverse industries. Washington is the metropolitan area that houses the most important parts of the American federal government, and Washington is dominated by the government and related industries. Washington is, in other words, a political capital. The ambition of this Essay is to make a descriptive point related to the status of Washington as a political capital. Because of its location in a metropolitan area dominated by a single industry, federal officials and those whom federal officials interact with are a narrower slice of the large and diverse American republic. While the American Constitution might permit a range of federal outcomes, the American political capital narrows that range of outcomes. This narrowing has a number of implications. On the one hand, the American system is less responsive to the range of interests existing in the United States. On the other hand, the American political capital plays a particularly important role in limiting the access by, and creation of, damaging private or governmental forces

Relational Federalism: An Essay in Honor of Heather Gerken

This paper was presented at the 2012 Legal Scholarship Symposium. The full video is available here

Comparative Originalism

Jamal Greene has written an important paper examining originalism in other countries. This short response argues that comparing the United States with Canada and Australia (the countries Professor Greene mostly examines) involves comparing quite different countries, because the Canadian and Australian constitutions reorganized preexisting institutions, whereas the United States had more of a nation-creating, revolutionary constitution. Other countries that arose out of more revolutionary events, such as certain post-colonial African and Latin American nations, have also tended to feature originalist arguments. When the nation predates the creation of a constitution, key cultural and political understandings also predate the constitution, thereby diminishing the importance of originalism

The Second American Revolution in the Separation of Powers

The American Constitution creates three branches of government and ensures that there will be sufficiently great amounts of ideological diversity among these branches of government. Despite this regime ensuring external heterogeneity, the American system, uniquely among the world\u27s major constitutional democracies, rarely creates the same degree of heterogeneity at the highest levels of the Executive Branch that it does among the highest levels of the various branches of government. This Article discusses the distinctiveness of the homogeneous high-level American Executive Branch and the events that led to such a situation. At the first key moment defining the separation of powers in the new American Constitution, the time of the creation of the Constitution, there was still support for an Executive Branch composed of a diverse range of leaders, and the rules of the new Constitution did not hinder this ambition. At the second key moment defining the separation of powers in the new Constitution, the creation of the Twelfth Amendment in 1804, a series of new rules and the political and legal realities that followed resulted in the highest levels of the Executive Branch becoming far more homogeneous than the one that preceded the Twelfth Amendment

The Current Generation of Constitutional Law

In this piece reviewing Mark Tushnet\u27s The New Constitutional Order, David Fontana argues that Tushnet\u27s admirably comprehensive book faces some of the same problems that many other pieces of popular constitutionalism scholarship do: He discusses the Constitution outside of the courts without examining the actual behavior of the Constitution outside of the courts. As it turns out, Tushnet is mostly right that there has not been a major constitutional revolution in the past generation. Still, by understudying the behavior of institutions besides courts, the book does not focus enough on the extent to which the entire political dynamic has moved to the right in the past generation, so no matter what that dynamic produces, it is bound to be farther to the right than the policies of a generation ago

The Imperialism of American Constitutional Law

This Book Review examines the ways in which comparative constitutional law scholarship has, to this point, been dominated by the same concerns and issues which predominate domestic American constitutional law scholarship

Executive Branch Legalisms

The Office of Legal Counsel (OLC) and White House Counsel’s Office (WHC) have both been the subject of much recent attention in legal scholarship, and both offices are at the center of the debate between Bruce Ackerman and Trevor Morrison that this paper addresses. However, these offices remain less representative of and less important to executive branch legalism than the substantial amount of attention these offices are receiving suggests. These offices matter, and matter more than any other individual legal office in the executive branch. However, there are limitations in using these two offices as a means of understanding the executive branch’s legal operations more generally. Executive branch lawyering is still overwhelmingly lawyering by civil service lawyers who are not appointed by the President or substantially affected by the lawyers that the President appoints. In other words, the law created and shaped by civil service lawyers — what I call “civil service legalism” — is a crucial but increasingly unappreciated part of the legal presidency (and different than the law created and shaped by the more “political lawyers” in OLC and WHC). In particular, there are differences between OLC/WHC and the large majority of other legal offices in the executive branch in terms of their legal personnel: how do these lawyers come to work in the executive branch, and what are their incentives once they are working there? The executive branch is a “‘they, not an it,’” and so too executive branch legality is more accurately described as executive branch legalisms — a plural and not a singular, with some important implications for our understanding of separation of powers

Relational Federalism: An Essay in Honor of Heather Gerken

This paper was presented at the 2012 Legal Scholarship Symposium. The full video is available here