The Duty of Responsible Administration and the Problem of Police Accountability

Many contemporary civil rights claims arise from institutional activity that, while troubling, is neither malicious nor egregiously reckless. When law-makers find themselves unable to produce substantive rules for such activity, they often turn to regulating the actors’ exercise of discretion. The consequence is an emerging duty of responsible administration that requires managers to actively assess the effects of their conduct on civil rights values and to make reasonable efforts to mitigate harm to protected groups. This doctrinal evolution partially but imperfectly converges with an increasing emphasis in public administration on the need to reassess routines in the light of changing circumstances. We illustrate the doctrinal and administrative changes with a study of policing. We discuss court-supervised reforms in New York and Cincinnati as examples of contrasting trajectories that these developments can take. Both initiatives are better understood in terms of an implicit duty of responsible administration than as an expression of any particular substantive right. However, the Cincinnati intervention reaches more deeply into core administrative practices and indeed mandates a particular crime control strategy – Problem-Oriented Policing. As such, it typifies a more ambitious type of structural civil-rights intervention that parallels comprehensive civil-rights initiatives in other areas

Spatial clustering of mental disorders and associated characteristics of the neighbourhood context in Malmö, Sweden, in 2001

Study objective: Previous research provides preliminary evidence of spatial variations of mental disorders and associations between neighbourhood social context and mental health. This study expands past literature by (1) using spatial techniques, rather than multilevel models, to compare the spatial distributions of two groups of mental disorders (that is, disorders due to psychoactive substance use, and neurotic, stress related, and somatoform disorders); and (2) investigating the independent impact of contextual deprivation and neighbourhood social disorganisation on mental health, while assessing both the magnitude and the spatial scale of these effects. Design: Using different spatial techniques, the study investigated mental disorders due to psychoactive substance use, and neurotic disorders. Participants: All 89 285 persons aged 40–69 years residing in Malmö, Sweden, in 2001, geolocated to their place of residence. Main results: The spatial scan statistic identified a large cluster of increased prevalence in a similar location for the two mental disorders in the northern part of Malmö. However, hierarchical geostatistical models showed that the two groups of disorders exhibited a different spatial distribution, in terms of both magnitude and spatial scale. Mental disorders due to substance consumption showed larger neighbourhood variations, and varied in space on a larger scale, than neurotic disorders. After adjustment for individual factors, the risk of substance related disorders increased with neighbourhood deprivation and neighbourhood social disorganisation. The risk of neurotic disorders only increased with contextual deprivation. Measuring contextual factors across continuous space, it was found that these associations operated on a local scale. Conclusions: Taking space into account in the analyses permitted deeper insight into the contextual determinants of mental disorders

Democratic Experimentalism

This essay, written for a volume surveying “contemporary legal thought”, provides an overview of Democratic Experimentalism, a perspective that draws on both pragmatist social theory and recent practical innovations in private and public organization. Normatively, Democratic Experimentalism aligns with process theories that emphasize the role of courts in vindicating entitlements through inducing, collaborating with, and policing institutions, rather than vindicating them directly through interpretive or policy-engineering techniques. It departs from some such theories, however, in emphasizing that practice must often take the form of continuous investigation and revision, rather than the adoption of definitive solutions already known to at least some social actors. Descriptively, Democratic Experimentalism purports to give a better account than other perspectives of important recent developments in private, public, and international law that aspire to enhance decentralization and accountability simultaneously

Minimalism and Experimentalism in the Administrative State

This Article identifies and appraises the two most promising alternatives to the command-and-control style of public administration that was dominant from the New Deal to the 1980s but is now in disfavor The first – minimalism – emphasizes public interventions that incorporate market concepts and practices while also centralizing and minimizing administrative discretion. The second – experimentalism – emphasizes interventions in which the central government affords broad discretion to local administrative units but measures and assesses their performance in ways designed to induce continuous learning and revision of standards. Minimalism has been prominent in legal scholarship and in the policy discourse of recent presidential administrations, but its practical impact has been surprisingly limited. By contrast, experimentalism, which has had a lower profile in academic and public discussion, has visibly influenced a broad range of critical policy initiatives in the United States and abroad. Indeed, key initiatives of the Obama Administration, including the Food Safety Modernization Act and the Race to the Top education program, are virtually unintelligible from any other perspective. We argue that, in practice, minimalism suffers from an excessive preoccupation with static efficiency norms and price signals, and from insufficient attention to learning and weak signals of risk and opportunity. Experimentalist intervention is a more promising approach in the growing realm of policy challenges characterized by uncertainty about both the definition of the relevant problems and the solutions

Contextualizing Regimes: Institutionalization as a Response to the Limits of Interpretation and Policy Engineering

When legal language and the effects of public intervention are indeterminate, generalist lawmakers (legislatures, courts, top-level administrators) often rely on the normative output of contextualizing regimes – institutions that structure deliberative engagement by stakeholders and articulate the resulting understanding. Examples include the familiar practices of delegation and deference to administrative agencies in public law and to trade associations in private law. We argue that resorting to contextualizing regimes is becoming increasingly common across a broad range of issues and that the structure of emerging regimes is evolving away from the wellstudied agency and trade association examples. The newer regimes mix public and private participation in novel ways. Their structures are less hierarchical than those of traditional administrative agencies and less clearly bounded than those of traditional trade associations. While the traditional regimes function to make solutions developed in more specialized realms available to generalist lawmakers, the newer ones function to organize collaborative inquiry where neither specialists nor generalists have well-developed understandings of problems or solutions. We explore the structure of such regimes and their relation to generalist lawmakers through three examples-a health and safety regime that straddles private and public law (the California Leafy Greens Products Handler Marketing Agreement), a civil rights regime (the Juvenile Detention Alternatives Initiative), and an international environmental regime (the Dolphin Conservation Program of the Inter-American Tropical Tuna Commission)

Constitutionalising an Overlapping Consensus: The ECJ and the Emergence of a Coordinate Constitutional Order

The European Court of Justice\u27s (ECJ\u27s) jurisprudence of fundamental rights in cases such as Schmidberger and Omega extends the court\u27s jurisdiction in ways that compete with that of Member States in matters of visceral concern. And just as the Member States require a guarantee that the ECJ respect fundamental rights rooted in national tradition, so the ECJ insists that international organisations respect rights constitutive of the EU. The demand of such guarantees reproduces between the ECJ and the international order the kinds of conflicting jurisdictional claims that have shadowed the relation between the ECJ and the courts of the Member States. This article argues that the clash of jurisdiction is being resolved by the formation of a novel order of coordinate constitutionalism in which Member States, the ECJ, the European Court of Human Rights and other international tribunals or organisations agree to defer to one another\u27s decisions, provided those decisions respect mutually agreed essentials. This coordinate order extends constitutionalism beyond its home territory in the nation state through a jurisprudence of mutual monitoring and peer review that carefully builds on national constitutional traditions, but does not create a new, encompassing sovereign entity. The doctrinal instruments by which the plural constitutional orders are, in this way, profoundly linked without being integrated are variants of the familiar Solange principles of the German Constitutional Court, by which each legal order accepts the decisions of the others, even if another decision would have been more consistent with the national constitution tradition, ‘so long as’ those decisions do not systematically violate its own understanding of constitutional essentials. The article presents the coordinate constitutional order being created by this broad application of the Solange doctrine as an instance, and practical development, of what Rawls called an overlapping consensus: agreement on fundamental commitments of principle – those essentials which each order requires the others to respect – does not rest on mutual agreement on any single, comprehensive moral doctrine embracing ideas of human dignity, individuality or the like. It is precisely because the actors of each order acknowledge these persistent differences, and their continuing influence on the interpretation of shared commitments in particular conflicts, that they reserve the right to interpret essential principles, within broad and shared limits, and accord this right to others. The embrace of variants of the Solange principles by many coordinate courts, in obligating each to monitor the others\u27 respect for essentials, creates an institutional mechanism for articulating and adjusting the practical meaning of the overlapping consensus

Contextualing Regimes: Institutionalization as a Response to the Limits of Interpretation and Policy Engineering

When legal language and the effects of public intervention are indeterminate, generalist lawmakers (legislatures, courts, top-level administrators) often rely on the normative output of contextualizing regimes-institutions that structure deliberative engagement by stakeholders and articulate the resulting understanding. Examples include the familiar practices of delegation and deference to administrative agencies in public law and to trade associations in private law. We argue that resorting to contextualizing regimes is becoming increasingly common across a broad range of issues and that the structure of emerging regimes is evolving away from the well-studied agency and trade association examples. The newer regimes mix public and private participation in novel ways. Their structures are less hierarchical than those of traditional administrative agencies and less clearly bounded than those of traditional trade associations. While the traditional regimes function to make solutions developed in more specialized realms available to generalist lawmakers, the newer ones function to organize collaborative inquiry where neither specialists nor generalists have well-developed understandings of problems or solutions. We explore the structure of such regimes and their relation to generalist lawmakers through three examples-a health and safety regime that straddles private and public law (the California Leafy Greens Products Handler Marketing Agreement), a civil rights regime (the Juvenile Detention Alternatives Initiative), and an international environmental regime (the Dolphin Conservation Program of the Inter-American Tropical Tuna Commission)

The Duty of Responsible Administration and the Problem of Police Accountability

Many contemporary civil rights claims arise from institutional activity that, while troubling, is neither malicious nor egregiously reckless. When law-makers find themselves unable to produce substantive rules for such activity, they often turn to regulating the actors’ exercise of discretion. The consequence is an emerging duty of responsible administration that requires managers to actively assess the effects of their conduct on civil rights values and to make reasonable efforts to mitigate harm to protected groups. This doctrinal evolution partially but imperfectly converges with an increasing emphasis in public administration on the need to reassess routines in the light of changing circumstances. We illustrate the doctrinal and administrative changes with a study of policing. We discuss court-supervised reforms in New York and Cincinnati as examples of contrasting trajectories that these developments can take. Both initiatives are better understood in terms of an implicit duty of responsible administration than as an expression of any particular substantive right. However, the Cincinnati intervention reaches more deeply into core administrative practices and indeed mandates a particular crime control strategy – Problem-Oriented Policing. As such, it typifies a more ambitious type of structural civil-rights intervention that parallels comprehensive civil-rights initiatives in other areas