Planning for Excellence: Insights from an International Review of Regulators’ Strategic Plans

What constitutes regulatory excellence? Answering this question is an indispensable first step for any public regulatory agency that is measuring, striving towards, and, ultimately, achieving excellence. One useful way to answer this question would be to draw on the broader literature on regulatory design, enforcement, and management. But, perhaps a more authentic way would be to look at how regulators themselves define excellence. However, we actually know remarkably little about how the regulatory officials who are immersed in the task of regulation conceive of their own success. In this Article, we investigate regulators’ definitions of regulatory excellence by drawing on a unique source of data that provides an important window on regulators’ own aspirations: their strategic plans. Strategic plans have been required or voluntarily undertaken for the past decade or longer by regulators around the globe. In these plans, regulators offer mission statements, strategic goals, and measurable and achievable outcomes, all of which indicate what regulators value and are striving to become. Occasionally, they even state explicitly where they have fallen short of “best-in-class” status and how they intend to improve. To date, a voluminous literature exists examining agency practices in strategic planning, but we are aware of no study that tries to glean from the substance of a sizeable number of plans how regulators themselves construe regulatory excellence. The main task of this Article is undertaking this effort. This Article draws on twenty plans from different regulators in nine countries. We found most generally that excellent regulators describe themselves (though not necessarily using exactly these words) as institutions that are more (1) efficient, (2) educative, (3) multiplicative, (4) proportional, (5) vital, (6) just, and (7) honest. In addition to these seven shared attribute categories, our reading of the plans also revealed five other “unusual” attributes that only one or two agencies mentioned. Beyond merely cataloguing the attributes identified by agencies, this Article also discusses commonalities (and differences) between plan structures, emphases, and framings. We found that the plans differed widely in features such as the specificity of their mission statements, the extent to which they emphasized actions over outcomes (or vice versa), and the extent to which commitments were organized along organizational fiefdoms or cut across bureaucratic lines. We urge future scholarship to explore alternative methods of text mining, and to study strategic plans over time within agencies, in order to track how agencies’ notions of regulatory excellence respond to changes in the regulatory context and the larger circumstances within which agencies operate. Looking longitudinally will also shed light on how agencies handle strategic goals that are either met or that prove to be unattainable

Symmetry’s Mandate: Constraining the Politicization of American Administrative Law

Recent years have seen the rise of pointed and influential critiques of deferencedoctrines in administrative law. What many of these critiques have incommon is a view that judges, not agencies, should resolve interpretive disputesover the meaning of statutes—disputes the critics take to be purely legaland almost always resolvable using lawyerly tools of statutory construction.In this Article, I take these critiques, and the relatively formalist assumptionsbehind them, seriously and show that the critics have not acknowledged oradvocated the full reform vision implied by their theoretical premises. Specifically,critics have extended their critique of judicial abdication only to what Icall Type I statutory errors (that is, agency interpretations that regulate moreconduct than the best reading of the statute would allow the agency to regulate)and do not appear to accept or anticipate that their theory of interpretationwould also extend to what I call Type II statutory errors (that is, agencyfailures to regulate as much conduct as the best reading of the statute wouldrequire). As a consequence, critics have been more than willing to entertainan end to Chevron deference, an administrative law doctrine that is mostlyinvoked to justify Type I error, but have not shown any interest in adjustingadministrative law doctrine to remedy agencies’ commission of Type II error.The result is a vision of administrative law’s future that is precariously slantedagainst legislative and regulatory action.I critique this asymmetry in administrative law and address potential justificationsof systemic asymmetries in the doctrine, such as concern about theremedial implications of addressing Type II error, finding them all wantingfrom a legal and theoretical perspective. I also lay out the positive case for adhering to symmetry in administrative law doctrine. In a time of deep politicalconflict over regulation and administration, symmetry plays, or at thevery least could play, an important role in depoliticizing administrative law,clarifying what is at stake in debates about the proper level of deference toagency legal interpretations, and disciplining partisan gamesmanship. I suggestthat when the conversation is so disciplined, an administrative law withoutdeference to both Type I and Type II error is hard to imagine due to thehigh judicial costs of minimizing Type II error, but if we collectively choose todiscard deference notwithstanding these costs, it would be a more sustainablepolitical choice for administrative law than embracing the current, one-sidedcritique of deference

Deterministic context-sensitive languages: Part I

A context-sensitive grammar G is said to be CS(k) iff a particular kind of table-driven parser, Tk(G), exists. Corresponding to each Tk(G), we define a class of parsers T¯k(G). Tk(G) is itself a T¯k(G). The main results are:1.Any processor T¯k(G) for a CS(k) grammar G accepts exactly the sentences of G.2.The set of languages generable by CS(k) grammars is exactly the set of languages accepted by deterministic linear-bounded automata (DLBA's).3.(a)It is undecidable whether there exists any k ⩾ 0 such that an arbitrary CSG is CS(k).(b)For every fixed k ⩾ 0, there is no algorithm that will decide if G is CS(k) and also construct Tk(G) if it exists.4.For any DLBA M, algorithms are given to (i) construct a CS(k) grammar GM that generates the language accepted by M, and (ii) construct a processor T¯1(GM).5.CS(k) grammars are unambiguous.6.The sentences of a CS(k) grammar can be parsed in a time proportional to the length of their derivations

Capturing the Regulatory Agenda: An Empirical Study of Agency Responsiveness to Rulemaking Petitions

In environmental regulation as well as in other regulatory domains, a critical question is how outside interests shape the rulemaking agenda. A great deal of skepticism toward regulation stems from the widespread perception that agencies excessively, or even exclusively, cater to business interests. One answer to these concerns is administrative procedure, in particular rulemaking petitions, which are provided for in the Administrative Procedure Act and in many substantive environmental statutes. Although rulemaking petitions could in theory be used by business interests to strengthen their hold on regulatory agenda-setting, a growing number of scholars, highlighting the critical role a rulemaking petition played in the Supreme Court’s 2007 decision forcing EPA action on climate change, have pointed to the potential for rulemaking petitions to combat agency inaction and under-regulation. Despite these warring descriptions, we actually have very little generalizable understanding of how rulemaking petitions operate in practice and to whom the benefits of the institution flow. In this Article, I take a close look at original data on all the rulemaking petitions submitted to three administrative agencies from 2000 to 2016, statistically tracing petitions’ fates from submission to resolution. I find that, although business interests may participate at a higher rate than public interest groups and individuals, there is little evidence of full-on regulatory capture via petitions. Even in a venue where it would be exceedingly easy to give business interests precisely what they want, agencies remain largely unmoved and evenhanded. The pattern that does emerge—an agency preference for using petitions to inform incremental revision and softening of existing regulations to reflect changed circumstances or new technologies—probably does inure mostly to the benefit of regulated entities, but it is difficult to square these findings with theories of excessive influence or capture of the regulatory process by business interests. At the same time, the findings pour cold water on the more sanguine account of petitions as a tool to advance environmental regulation. Despite the allure of such an account after Massachusetts v. EPA, the reality is that petitions are rarely transformative and will remain so unless significant changes are made to the institution

The Self-Delegation False Alarm: Analyzing Auer Deference’s Effect on Agency Rules

Auer deference holds that reviewing courts should defer to agen­cies when the latter interpret their own preexisting regulations. This doc­trine relieves pressure on agencies to undergo costly notice-and-com­ment rulemaking each time interpretation of existing regulations is neces­sary. But according to some leading scholars and jurists, the doc­trine actually encourages agencies to promulgate vague rules in the first instance, augmenting agency power and violating core separation of pow­ers norms in the process. The claim that Auer perversely encourages agencies to “self-delegate”—that is, to create vague rules that can later be informally interpreted by agencies with latitude due to judicial defer­ence—has helped to persuade the Supreme Court to take up this term the question of whether to overturn the doctrine. Yet, surprisingly, the self-delega­tion thesis has never been tested. This Article scrutinizes the thesis empirically, using an original and extensive dataset of the texts of federal rules from 1982 to 2016. My lin­guistic analysis reveals that agencies did not measurably increase the vagueness of their writing in response to Auer. If anything, rule writ­ing arguably became more specific over time, at least by one measure, despite Auer’s increasing prominence. These findings run against common wisdom, but they should not be at all surprising. The self-delegation thesis depends on a model of agency behavior that is inconsistent with what is known about the insti­tutional pressures and cognitive horizons that cause agencies to pur­sue clarity in rule writing. By revealing the failures of theoretical predictions about Auer, this Article more generally draws attention to the need to test behavioral theories of administrative law against empiri­cal reality before unsettling settled law

The Justiciability of Fair Balance under the Federal Advisory Committee Act: Toward a Deliberative Process Approach

The Federal Advisory Committee Act\u27s requirement that advisory committees be fairly balanced in terms of the points of view represented and the functions to be performed is generally considered either nonjusticiable under the Administrative Procedure Act or justiciable but subject to highly deferential review. These approaches stem from courts\u27 purported inability to discern from the text of the statute any meaningful legal standards for policing representational balance. Thus, the Federal Advisory Committee Act\u27s most important substantive limitation on institutional pathologies such as committee capture or domination is generally unused despite the ubiquity of federal advisory committees in the modern regulatory state. This Note argues for a new reading of the Federal Advisory Committee Act\u27s fair balance provision that would make the provision justiciable. Instead of reading the provision to require quantitative representational balancing of various interests-and thus asking courts to make political decisions-this Note contends that the text of the provision permits an alternative reading, which I call the deliberative process reading. Under this reading, courts would decide whether a committee\u27s record airs all of the relevant viewpoints associated with the issue under the committee\u27s consideration. This kind of review is familiar to courts in other administrative law contexts, so there would be no plausible argument that the provision is unreviewable for lack of meaningful standards. I argue that this deliberative process reading would enhance advisory outputs and ensure that this fifth branch of government is still under public control