The Supreme Court in Real Time: Haste, Waste, and Bush v. Gore

The legal proceedings following the 2000 election had their moments of humor. The oral argument in Bush v. Gore may have produced the most guffaws, as Joseph Klock struggled to name the Justices of the Supreme Court, or even to limit himself to those currently living. But if one finds humor in the absurd, the comic highpoint came 34 hours later (34 hours!) when the Court released its decision. Network “runners”―presumably the employees who had distinguished themselves at company picnics, the network softball league, or summer corporate challenge races―grabbed copies, dashed outside, and handed them to on-air reporters who were waiting in the darkness on the Supreme Court plaza, breathless with anxiety and anticipation. The reporters then ludicrously attempted to understand, synthesize, and explain 65 pages of judicial exposition instantaneously. The reporters stumbled badly, and everyone remained in the dark, in every sense

We Are All Publicists Now

RegBlog’s founding in 2011 was an ambitious, creative, and prescient undertaking. It was also very much a sign of the times, reflecting the increasing comfort with—and saturation by—social media throughout society

Mass Comments’ Opportunity Costs

Agencies, courts, and academics agree that notice-and-comment rulemaking is not a referendum. But that conceptualization presents a challenge when an agency is confronted with mass comments. If agencies are not counting but reading comments, and if mass comments are duplicative and often devoid of content beyond a strong expression of values or preference, then what do they add

E-Rulemaking’s Democratic Transformation: Anticipated, Actual, and Potential

Notice-and-comment rulemaking is often held out as the purest example of participatory democracy in actual American governance. K.C. Davis called notice-and-comment rulemaking the “most democratic of procedures” because all may participate. Regulators are required to accept comments from any interested person and consider and respond to them before making a final decision. Direct public engagement has been seen as an antidote to the democracy deficit that plagues policymaking by unelected bureaucrats. Central to this conception is a belief that the comment process will involve a meaningful exchange of views. In the words of the DC Circuit, notice and comment involves “an exchange of views, information, and criticism between interested persons and the agency.” Indeed, it is this broad participation and exchange that is seen as legitimating the resulting regulations.Of course, the reality has always fallen far short of these ideals. Many anticipated that electronic rulemaking would enable more democratic rulemaking, finally allowing effective and broad public participation. This has not in fact happened. This paper reviews the course of e-rulemaking in the United States and offers some suggestions for how it might be restructured in a more limited, but more meaningful, democratic way

Symposium: The Challengingly Uncategorizable Recess Appointments Clause

I fear that I am participating in this discussion under false pretenses, because I have no idea how the Court will decide National Labor Relations Board v. Noel Canning. And the reasons go far beyond the fact that this is a case of first impression or the possibility that the whole thing is a nonjusticiable political question. I am not going to review the substantive arguments for and against the D.C. Circuit’s ruling. Instead, I will touch on some other aspects of the recess appointments issue that make it a particularly hard one to guess about