Matthew C. Stephenson

Professor of Law

Biography

Matthew Stephenson is Professor of Law at Harvard Law School, where he teaches administrative law, legislation and regulation, anti-corruption law, and political economy of public law. His research focuses on the application of positive political theory to public law, particularly in the areas of administrative procedure, anti-corruption, judicial institutions, and separation of powers. Prior to joining the Harvard Law School faculty, Professor Stephenson clerked for Senior Judge Stephen Williams on the D.C. Circuit and for Justice Anthony Kennedy on the Supreme Court. He received his J.D. and Ph.D. (political science) from Harvard in 2003, and his B.A. from Harvard College in 1997.

Areas of Interest

Justin Fox & Matthew C. Stephenson, Judicial Review as a Response to Political Posturing, 105 Am. Pol. Sci. Rev. 397 (2011).
Categories:
Government & Politics
Sub-Categories:
Courts
,
Administrative Law & Agencies
,
Judges & Jurisprudence
,
Separation of Powers
Type: Article
Abstract
We use an agency model to analyze the impact of judicial review on the incentives of elected leaders to “posture” by enacting bold but ill-advised policies. We find that judicial review may exacerbate posturing by rescuing leaders from the consequences of unwise policies, but may also discourage posturing by alerting voters to unjustified government action. We further find that judges will defer to the decision of elected leaders unless posturing is sufficiently likely. We then show how judicial review affects voter welfare, both through its effect on policy choice and through its effect on the efficacy of the electoral process in selecting leaders. We also analyze how the desirability of judicial review is affected by characteristics of the leaders and the judges.
Matthew C. Stephenson, Information Acquisition and Institutional Design, 124 Harv. L. Rev. 1422 (2011).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Law & Public Policy
,
Critical Legal Studies
,
Legal Theory & Philosophy
,
Public Law
Type: Article
Abstract
Although good information is critical to effective decision making, public agents' private incentives to invest in gathering information may not align with the social interest in their doing so. This Article considers how legal-institutional design choices affect government decisionmakers' incentive to invest in information, as well as how to manage the inevitable trade-off between promoting efficient use of information ex post and stimulating efficient acquisition of information ex ante. Using a simple theoretical framework, the Article considers a range of techniques for incentivizing information gathering, with particular attention to the structure of public institutions and public law.
Matthew C. Stephenson, Optimal Political Control of the Bureaucracy, 107 Mich. L. Rev. 53 (2008).
Categories:
Government & Politics
Sub-Categories:
Politics & Political Theory
,
Separation of Powers
,
Administrative Law & Agencies
,
Corruption
,
Elections & Voting
,
Executive Office
,
Government Transparency
Type: Article
Abstract
How much influence should elected politicians wield over bureaucratic policy? Many distinguished scholars and practitioners assert that the answer is "a great deal." The primary justification for this conclusion is that most bureaucratic policy choices involve fundamentally political value trade-offs, and in a democracy there is a strong presumption that such choices should reflect the interests of electoral majorities. Furthermore, if an elected politician--let us say the President--tends to respond to majoritarian interests, while an administrative agency, if left to its own devices, does not, then it may seem self-evident that giving the politician greater influence over the agency, all else equal, will always increase the degree to which agency decisions reflect voter preferences. This Article argues that this seemingly obvious conclusion is false. Even if we stack the deck in favor of maximum political control by assuming that elected politicians are more responsive to voters than are agencies, and that agencies do not have any special expertise or other advantages, a majority of the electorate is still better off with some degree of bureaucratic insulation from political control.
Matthew C. Stephenson, Beware Blowback: How Attempts to Strengthen FCPA Deterrence Could Narrow the Statute's Scope, in The Research Handbook on Corporate Crime and Financial Misdealing (Jennifer Arlen ed., 2016).
Categories:
Corporate Law & Securities
,
Criminal Law & Procedure
,
International, Foreign & Comparative Law
Type: Book
Justin Fox & Matthew C. Stephenson, The Welfare Effects of Minority-Protective Judicial Review, 27 J. Theoretical Pol. 499 (2015).
Categories:
Government & Politics
Sub-Categories:
Courts
,
Separation of Powers
,
Politics & Political Theory
,
Judges & Jurisprudence
Type: Article
Abstract
Constitutional theorists usually assume that minority-protective judicial review leads to outcomes more favorable to the protected minority and less favorable to the majority. Our analysis highlights an indirect effect of judicial review that complicates this conventional wisdom. Without judicial review, pro-majority and pro-minority leaders adopt different policies. Because judicial review limits the degree to which pro-majority leaders can adopt anti-minority policies, it becomes easier for pro-minority leaders to ‘mimic’ pro-majority leaders by adopting the most anti-minority policy that the judiciary would uphold. Furthermore, if judicial invalidation of anti-minority policies is probabilistic rather than certain, pro-majority leaders may propose even more extreme anti-minority policies in order to deter pro-minority leaders from mimicking. These effects can sometimes nullify, or even reverse, the assumed relationship between minority-protective judicial review and pro-minority outcomes. When such reversal occurs, majoritarian democrats should favor minority-protective judicial review, while those concerned with protecting unpopular minorities should oppose it.
Matthew C. Stephenson, Corruption and Democratic Institutions: A Review and Synthesis, in Greed, Corruption, and the Modern State Essays in Political Economy 92 (Susan Rose-Ackerman & Paul Lagunes eds., Edward Elgar Publ'g 2015).
Categories:
Government & Politics
Sub-Categories:
Corruption
,
Government Accountability
,
Government Transparency
Type: Book
Abstract
What makes the control of corruption so difficult and contested? Drawing on the insights of political science, economics and law, the expert contributors to this book offer diverse perspectives.
Justin Fox & Matthew C. Stephenson, The Constraining, Liberating, and Informational Effects of Nonbinding Law, 31 J.L. Econ. & Org. 320 (2015).
Categories:
Government & Politics
Sub-Categories:
Courts
,
Judges & Jurisprudence
,
Elections & Voting
,
Government Accountability
Type: Article
Abstract
We show that nonbinding law can have a constraining effect on political leaders, because legal compliance is a costly signal to imperfectly informed voters that the leader is unbiased. Moreover, nonbinding law can also have a liberating effect, enabling some leaders to take action when they otherwise would have done nothing. In addition, we illustrate how voters may face a trade-off between the legal standard that induces optimal behavior of the current leader (i.e., that most effectively addresses the moral hazard problem) and the legal standard that optimizes selection of future leaders (i.e., that most effectively addresses the adverse selection problem). We discuss a range of positive and normative implications that follow from our analysis.
Jacob E. Gersen & Matthew C. Stephenson, Over-Accountability, 6 J. Legal Analysis 185 (2014).
Categories:
Government & Politics
Sub-Categories:
Government Accountability
,
Public Law
Type: Article
Abstract
Although ensuring the “accountability” of agents to their principals is widely considered a core objective of institutional design, recent work in political economy has identified and elucidated an important class of situations in which effective accountability mechanisms can decrease, rather than increase, an agent’s likelihood of acting in her principal’s interests. The problem, which we call “over-accountability,” is essentially an information problem: sometimes even a fully rational but imperfectly informed principal (e.g., the citizens) will reward “bad” actions rather than “good” actions by an agent (e.g. the President). In these cases, not only do accountability mechanisms fail to remedy the agency problem inherent in representative government, they actually make the problem worse. This Article offers a conceptual and empirical overview of over-accountability problems, and also considers a range of potential solutions. By surveying both the distortions themselves and a range of possible responses, this article aspires to assist both public law scholars and institutional reformers in producing more effective solutions.
Matthew C. Stephenson, Does Separation of Powers Promote Stability and Moderation?, 42 J. Legal Stud. 331 (2013).
Categories:
Government & Politics
Sub-Categories:
Separation of Powers
,
Congress & Legislation
Type: Article
Abstract
It is often asserted that separation of legislative powers tends to make legislation both more moderate (because concessions to all veto players are needed to secure enactment) and less frequent (because sufficient concessions are sometimes infeasible). The formal analysis in this article shows this claim to be incomplete and sometimes incorrect. Although greater separation of powers makes legislation more difficult to enact, it also makes legislation, once enacted, more difficult to repeal. Attenuating the threat of repeal means that when one faction has sufficient power to push through extreme policies, it is more likely to do so than would be the case if legislative power were more concentrated. These two effects cut in opposite directions, and it is difficult to say, as a general matter, which will predominate. Indeed, increasing the fragmentation of legislative power may sometimes increase both the expected frequency and the expected extremism of legislative enactments.
Matthew C. Stephenson, Can the President Appoint Principal Executive Officers Without a Senate Confirmation Vote?, Yale L.J. 940 (2013).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Executive Office
,
Congress & Legislation
Type: Article
Abstract
It is generally assumed that the Constitution requires the Senate to vote to confirm the President’s nominees to principal federal offices. This Essay argues, to the contrary, that when the President nominates an individual to a principal executive branch position, the Senate’s failure to act on the nomination within a reasonable period of time can and should be construed as providing the Senate’s tacit or implied advice and consent to the appointment. On this understanding, although the Senate can always withhold its constitutionally required consent by voting against a nominee, the Senate cannot withhold its consent indefinitely through the expedient of failing to vote on the nominee one way or the other. Although this proposal seems radical, and certainly would upset longstanding assumptions, the Essay argues that this reading of the Appointments Clause would not contravene the constitutional text, structure, or history. The Essay further argues that, at least under some circumstances, reading the Constitution to construe Senate inaction as implied consent to an appointment would have desirable consequences in light of deteriorating norms of Senate collegiality and of prompt action on presidential nominations.
Matthew C. Stephenson & Miri Pogoriler, Seminole Rock's Domain, 79 Geo. Wash. L. Rev. 1449 (2011).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Judges & Jurisprudence
,
Statutory Interpretation
Type: Article
Abstract
In carrying out their duties, federal administrative agencies must often interpret statutes and regulations that are not entirely clear. Sometimes an agency’s interpretation of an ambiguous legal text may not seem like the best or most natural interpretation of that text. Nonetheless, a staple of modern federal administrative law doctrine is the principle of judicial deference to administrative interpretations of both congressional statutes and agency regulations. The seminal case on judicial deference to reasonable agency statutory interpretations is, of course, Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. In the context of administrative interpretations of the agency’s own regulations, the leading authority is the Supreme Court’s 1945 decision in Bowles v. Seminole Rock & Sand Co., which held that an agency’s construction of its own regulation should be given “controlling weight unless it is plainly erroneous or inconsistent with the regulation.” More recent Supreme Court cases—including Thomas Jefferson University v. Shalala and Auer v. Robbins—have reaffirmed the Seminole Rock principle of judicial deference to an agency’s reasonable construction of its own regulations.
Matthew C. Stephenson & Jide O. Nzelibe, Political Accountability Under Alternative Institutional Regimes, 22 J. Theoretical Pol. 139 (2010).
Categories:
Government & Politics
Sub-Categories:
Government Accountability
,
Executive Office
,
Congress & Legislation
,
Politics & Political Theory
,
Separation of Powers
Type: Article
Abstract
We analyze the interaction between electoral accountability and separation-of-powers by comparing three regimes: ‘Unilateral Authority’ (the President has exclusive decision-making power); ‘Mandatory Checks’ (the President cannot change policy without congressional assent); and ‘Opt-in Checks’ (the President may seek congressional authorization or act unilaterally). We find: (1) voters use asymmetric electoral rewards and punishments to offset the risk of politician bias, but voters rely less on this blunt instrument if there are internal checks; (2) adding a veto player need not alter the ex ante likelihood of policy change; and (3) voter welfare is highest under Opt-In Checks and lowest under Unilateral Authority.
Matthew C. Stephenson, Statutory Interpretation by Agencies, in Research Handbook on Public Choice and Public Law (Daniel A. Farber & Anne Joseph O'Connell eds., Edward Elgar Pub. 2010).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Statutory Interpretation
,
Public Law
Type: Book
Abstract
ublic choice theory sheds light on many aspects of legislation, regulation, and constitutional law and is critical to a sophisticated understanding of public policy. The editors of this landmark addition to the law and economics literature have organized the Handbook into four main areas of inquiry: foundations, constitutional law and democracy, administrative design and action, and specific statutory schemes. The original contributions, authored by top scholars in the field, provide helpful introductions to important topics in public choice and public law while also exploring the institutional complexity of American democracy.
Jide O. Nzelibe & Matthew C. Stephenson, Complimentary Constraints: Separation of Powers, Rational Voting, and Constitutional Design, 123 Harv. L. Rev. 655 (2010).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Separation of Powers
,
Congress & Legislation
,
Politics & Political Theory
,
Elections & Voting
Type: Article
Abstract
This Article explores how the separation of powers affects voter’s electoral strategies, and how this interaction influences the performance of different institutional arrangements. We show that when one political agent, such as the President, acts unilaterally, voters are likely to respond asymmetrically to policy successes and failures in order to offset the risk that the President may be biased or “captured” by special interest groups. When political agents act in concert – such as when the President seeks congressional authorization for a policy initiative – voters prefer a more refined strategy, with less acute asymmetries between political rewards and punishments. Our analysis has positive and normative implications. First, it suggests that presidents do not always prefer to operate with as little congressional interference as possible. Second, it provides a rationalist account for “responsibility shifting” by elected officials – behavior that is usually thought to derive from voter confusion or irrationality. Third, it suggests that separation of powers does not necessarily induce “gridlock” or otherwise reduce the likelihood of policy change. Fourth, it suggests that although separation of powers enhances the efficacy of the electoral constraint on politicians, voter welfare is higher when separation of powers is “optional” rather than mandatory, as when the President may seek congressional authorization for policy initiatives but is not required to do so.
John F. Manning & Matthew C. Stephenson, Legislation and Regulation Cases and Materials (Foundation Press, 2010).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Administrative Law & Agencies
,
Congress & Legislation
,
Legal Education
Type: Book
Abstract
This casebook is specifically designed for a first-year class on Legislation Regulation, and provides a proven, ready-to-use set of materials for schools or instructors interested in introducing such a class to their 1L curriculum.
Yehonatan Givati & Matthew C. Stephenson, Judicial Deference to Inconsistent Agency Statutory Interpretations, 40 J. Legal Stud. 85 (2011).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Judges & Jurisprudence
,
Statutory Interpretation
Type: Article
Abstract
Although administrative law doctrine requires courts to defer to an agency's reasonable statutory interpretation, the doctrine is unclear as to whether an agency gets less deference when it changes its own prior interpretation. We formally analyze how judicial deference to revised agency interpretations affects those interpretations' ideological content. We find a non-monotonic relationship between judicial deference to inconsistent agency interpretations and interpretive extremism. This arises because as courts become less deferential to revised interpretations, the initial agency finds a moderate interpretation that will not be revised more appealing. Normatively, our results suggest that an interest in responsiveness of interpretive policy to the preferences of the incumbent leadership favors deference to revised interpretations, while an interest in ideological moderation favors a somewhat less deferential posture to interpretive revisions.
Matthew C. Stephenson, Legal Realism for Economists, 23 J. Econ. Persp. 191 (2009).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Legal Theory & Philosophy
,
Law & Economics
,
Judges & Jurisprudence
Type: Article
Abstract
Economists have made great progress in understanding the incentives and behavior of actors who operate outside of traditional economic markets, including voters, legislators, and bureaucrats. The incentives and behavior of judges, however, remain largely opaque. Do judges act as neutral third-party enforcers of substantive decisions made by others? Are judges "ordinary" policymakers who advance whatever outcomes they favor without any special consideration for law as such? Emerging recent scholarship has started to explore more nuanced conceptions of how law, facts, and judicial preferences may interact to influence judicial decisions. This work develops a perspective on judging that can usefully be understood as the modern manifestation of American Legal Realism, a jurisprudential movement of lawyers, judges, and law professors that flourished in the early twentieth century. The purpose of this essay is to introduce, in simplified form, the Realist account of judicial decision making; to contrast this view with alternative theories about law and judging; and to sketch out how a more explicit integration of the Realists' conceptual insights about law and judicial behavior might enrich the rapidly expanding economic work in this field.
Matthew C. Stephenson, The Price of Public Action: Constitutional Doctrine and the Judicial Manipulation of Legislative Enactment Costs, 118 Yale L.J. 2 (2008).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Judges & Jurisprudence
,
Courts
,
Public Law
,
Separation of Powers
Type: Article
Abstract
This Article argues that courts can, and often should, implement constitutional guarantees by crafting doctrines that raise the costs to government decisionmakers of enacting constitutionally problematic policies. This indirect approach may implement a kind of implicit balancing of interests, in which the damage to constitutional values is weighed against the strength of the government’s interest in the challenged policy, more effectively than alternative approaches. When the government has better information than the reviewing court about the effect of the challenged policy on constitutionally relevant interests, heightened enactment costs act as a kind of screening device: if the government would still enact a given policy in the face of substantial additional enactment costs, the probability that the policy serves significant government interests is likely to be higher. This Article first develops the theoretical argument as to how (and under what conditions) doctrines that manipulate legislative enactment costs may be more effective tools for judicial implementation of the Constitution than doctrines that require direct judicial assessment of the relative strength of the competing interests. The Article further contends that the federal judiciary already has the capacity to fashion doctrines that function in this way, and indeed current doctrine influences legislative enactment costs more than has generally been appreciated.
Matthew C. Stephenson, Bureaucratic Decision Costs and Endogenous Agency Expertise, 23 J. L. Econ. & Org. 469 (2007).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Separation of Powers
,
Executive Office
,
Government Transparency
Type: Article
Abstract
This article analyzes the effect of the cost that an agency must incur to adopt a new regulation (the “enactment cost”) on the agency's incentive to invest in expertise. The effect of the enactment cost on agency expertise depends on whether the agency would regulate if it fails to acquire additional information about the regulation's effects. If an uninformed agency would regulate, increasing enactment costs increases agency expertise; if an uninformed agency would retain the status quo, increasing enactment costs decreases agency expertise. These results may influence the behavior of an uninformed overseer, such as a court or legislature, that can manipulate the agency's enactment costs. Such an overseer must balance its interest in influencing agency policy preferences against its interest in increasing agency expertise. The article discusses the implications of these results for various topics in institutional design, including judicial and executive review of agency regulations, structure-and-process theories of congressional oversight, national security, criminal procedure, and constitutional law.
Matthew C. Stephenson, Judicial Reform in Developing Countries: Constraints and Opportunities, in Annual World Bank Conference on Development Economics--Regional 2007 : Beyond Transition 311 (Francois Bourguignon & Boris Pleskovic eds., 2007).
Categories:
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Judges & Jurisprudence
,
Courts
,
Developing & Emerging Nations
Type: Book
Abstract
This annual conference is a global gathering of the world's leading scholars and practitioners. Among the attendees are participants from developing countries, think tanks, NGOs, and international institutions. The papers included in this book concern issues such as: inequality and growth in transition; trade liberalization, inequality and poverty in Latin America and the Caribbean; can economic policy overcome geographic disadvantage in Eastern Europe and the Commonwealth of Independent States; and patterns of spatial convergence and divergence in India and China.
Ethan Bueno de Mesquita & Matthew Stephenson, Legal Institutions and Informal Networks, 18 J. Theoretical Pol. 40 (2006).
Categories:
Banking & Finance
,
Disciplinary Perspectives & Law
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Contracts
,
Economics
,
Law & Economics
,
Politics & Political Theory
,
Trade Regulation
Type: Article
Abstract
The relationship between third-party contract enforcement and informal networks raises important sociological, political, and economic questions. When economic activity is embedded in social structures, what are the implications of third-party contract enforcement for the scope and nature of economic relations? What determines whether individuals rely on formal legal institutions or informal networks to sustain trade relationships? Do legal institutions erode informal networks? We develop a model in which a trade-off exists between size and sustainability of networks. By adding the possibility of fee-based, enforceable contracts, we provide a theoretical explanation for the coexistence of legal contract enforcement and an informal economy. We find that legal enforcement has little effect on networks until law becomes sufficiently inexpensive, at which point small decreases in the cost of law have dramatic effects on network size and the frequency of use of the legal system.
Ethan Bueno de Mesquita & Matthew Stephenson, Informative Precedent and Intrajudicial Communication, 96 Am. Pol. Sci. Rev. 755 (2002).
Categories:
Government & Politics
Sub-Categories:
Politics & Political Theory
,
Judges & Jurisprudence
,
Courts
,
State & Local Government
,
Supreme Court of the United States
Type: Article
Abstract
We develop an informational model of judicial decision-making in which deference to precedent is useful to policy-oriented appellate judges because it improves the accuracy with which they can communicate legal rules to trial judges. Our simple model yields new implications and hypotheses regarding conditions under which judges will maintain or break with precedent, the constraining effect that precedent has on judicial decision-making, the voting behavior of Supreme Court Justices, the relationship between a precedent's age and its authority, the effect of legal complexity on the level of deference to precedent, the relative stability of rules and standards, and long-term patterns of legal evolution. Perhaps most importantly, we demonstrate that "legalist" features of judicial decision-making are consistent with an assumption of policy-oriented judges.

Academic Appointment and Employment History

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