Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation

The usefulness of legislative history has been brought into question concerning how judges interpret the intent of legislation. The structure of the legislative process is examined in order to identify how legislators solve the problem of instability of majority rule

From Expert Administration to Accountability Network: A New Paradigm for Comparative Administrative Law

Notwithstanding the radically changed landscape of contemporary administrative governance, the categories that guide comparative administrative law and that determine what will be compared remain similar to those used at the founding of the discipline in the late 1800s. These categories are rooted in confidence in an expert bureaucracy to accomplish public purposes and are mainly twofold - administrative organization and judicial review. This outdated model has limited the ability of comparative law to engage with contemporary debates on the administrative state, which instead display considerable skepticism of public administration and are premised on achieving the public good through a plural accountability network of public and private actors. This Article seeks to correct the anachronism by reframing comparative administrative law as an accountability network of rules and procedures designed to embed public administration and civil servants in their liberal democratic societies: accountability to elected officials, organized interests, the courts, and the general public. Based on this paradigm, the Article compares American and European administrative law in a global context. Among the many differences explored are parliamentary versus presidential political control, pluralist versus neo-corporatist forms of self-regulation and public-private collaboration, judicial review focused on fundamental rights versus policy rationality, and reliance on ombudsmen in lieu of courts. The Article concludes with a number of suggestions for how comparative law can speak to current debates on reforming administrative governance

Psychological Bias as a Driver of Financial Regulation

I propose here the psychological attraction theory of financial regulation—that regulation is the result of psychological biases on the part of political participants—voters, politicians, bureaucrats, and media commentators; and of regulatory ideologies that exploit these biases. Some key elements of the psychological attraction approach are: salience and vividness, omission bias, scapegoating and xenophobia, fairness and reciprocity norms, overconfidence, and mood effects. This approach further emphasizes emergent effects that arise from the interactions of individuals with psychological biases. For example, availability cascades and ideological replicators have powerful effects on regulatory outcomes

The Political Economy of Law

In the 1980s scholars began applying Positive Political Theory (PPT) to study public law. This chapter summarizes that body of research and its relationship to other schools of legal thought. Like Law and Economics, PPT of Law uses sequential game theory to examine how rules and procedures shape policy and evaluates these outcomes from the perspective of economic efficiency. Like the Legal Process School in traditional legal scholarship, PPT of Law focuses on how the structure and process of legislative, bureaucratic and judicial decision-making influences the law and evaluates these procedures using the principle of democratic legitimacy; however, rather than using procedural norms derived from moral and political philosophy to evaluate procedures, PPT of Law conceptualizes the decision-making procedures of government as rationally designed by elected officials to shape the policies arising from decisions by executive agencies, the courts, and future elected officials. After summarizing this theory, the essay turns to applications of this approach in administrative law and statutory interpretation.Positive political theory, governance, rule of law, government institutions, policy-making processes, judicial review