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.
Matthew Stephenson & John F. Manning, Legislation & Regulation and Reform of the First Year, 65 J. Legal Educ. 45 (2015).
Categories:
Legal Profession
,
Government & Politics
Sub-Categories:
Statutory Interpretation
,
Congress & Legislation
,
Administrative Law & Agencies
,
Legal Education
Type: Article
Abstract
This essay discusses the development of a Legislation and Regulation course (or Leg-Reg) as part of a 1L curriculum reform that the Harvard Law School faculty unanimously adopted in 2006. The reform was adopted following three years of work by a Committee on Educational Innovations appointed by then-Dean Elena Kagan and chaired by future Dean Martha Minow. The Leg-Reg piece of the new curriculum aims to broaden the 1L program's perspective from the essential, but by today's standards incomplete, focus on private law topics and common law reasoning that had dominated the 1L curriculum since 1873. Leg-Reg instead focuses on statutes and the regulations that implement them. The course emphasizes not only the interpretation of those materials, but also the lawmaking process, institutional context, and political dynamics that shape the production and interpretation of statutes and regulations. This essay discusses several aspects of the Harvard experience with Legislation and Regulation. First, because reforming the 1L curriculum is such a daunting process, the paper provides a brief account of the extensive curricular reform process that successfully produced this and two other new 1L courses. Second, the essay discusses the course's strategy for fitting novel and somewhat different techniques, materials, and concepts into a 1L course. In particular, it will discuss the fact that, while the Leg-Reg incorporates many topics and methods that are touched on only tangentially, if at all, in other 1L courses (such as textual exegesis, legislative procedure, and public choice theory), it does so primarily by asking students (a) to learn and assess concrete, real-world legal decisions and then (b) to build out, through note material, to the broader concepts implicated by the cases. In addition, the version of the Leg-Reg course developed at Harvard is consciously transsubstantive, rather than focused on a particular policy area. Third, this essay elaborates on this pedagogical approach by giving some detail about the way Leg-Reg presents certain key cases on statutory interpretation. Fourth, the essay examines the administrative law (“Reg”) component of the course. In particular, the essay explains how starting with statutory interpretation addresses the often-voiced concern that administrative law is simply too complicated for 1Ls. This part of the essay also discusses the impact of 1L Leg-Reg course on enrollments in Administrative Law and related public law offerings.
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.
United Nations Office of Drugs and Crime, The United Nations Convention Against Corruption: National Anti-Corruption Strategies: A Practical Guide for Development and Implementation (Richard E. Messick and Matthew C. Stephenson, principal co-drafters, 2015).
Categories:
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Corruption
Type: Other
Matthew C. Stephenson, Keynote Address, International Bar Association Conference on "The Fight Against Corruption in Latin America," (May 12, 2014).
Categories:
International, Foreign & Comparative Law
,
Legal Profession
,
Government & Politics
Sub-Categories:
Corruption
,
Foreign Law
,
Legal Ethics
Type: Presentation
Abstract
Keynote Address, International Bar Association Conference on "The Fight Against Corruption in Latin America".
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, Keynote Address, Conference on "A New Era for Public Sector Reform in the ASEAN Community (Jan. 17, 2013).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Developing & Emerging Nations
Type: Presentation
Abstract
Keynote Address, Conference on "A New Era for Public Sector Reform in the ASEAN Community
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, Keynote Address, Conference on "Evidence-Based Anti-Corruption Policies", Jan 11, 2012.
Categories:
Government & Politics
Sub-Categories:
Corruption
Type: Presentation
Abstract
Keynote Address, Conference on "Evidence-Based Anti-Corruption Policies"
Formal Rulemaking and Judicial Review: Protecting Jobs and the Economy with Greater Regulatory Transparency and Accountability: Hearing Before the H. Subcomm. on Courts, Commercial & Admin. Law of the House Comm. on the Judiciary, 112th Cong. 112-49 (2011)(statement of Matthew C. Stephenson).
Categories:
Government & Politics
Sub-Categories:
Government Accountability
,
Government Transparency
,
Administrative Law & Agencies
Type: Presentation
Abstract
Formal Rulemaking and Judicial Review: Protecting Jobs and the Economy with Greater Regulatory Transparency and Accountability: Hearing Before the H. Subcomm. on Courts, Commercial & Admin. Law of the House Comm. on the Judiciary, 112th Cong. 112-49 (2011)(statement of Matthew C. Stephenson).
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 & 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 & Howell E. Jackson, Lobbyists as Imperfect Agents: Implications for Public Policy in a Pluralist System, 47 Harv. J. on Legis. 1 (2010).
Categories:
Government & Politics
Sub-Categories:
Congress & Legislation
,
Government Transparency
,
Administrative Law & Agencies
,
Politics & Political Theory
Type: Article
Abstract
Interest group pluralism presumes that public policy outcomes are determined principally through a contest for influence among organized pressure groups. Most interest groups, however, do not represent themselves in this process. Rather, they rely on professional lobbyists for representation, information, and advice. These lobbyists, however, may have their own interests, which may not align perfectly with those of their clients. This Essay outlines this principal agent problem and suggests its possible implications for policy outcomes. In particular, this piece hypothesizes that the lobbyist-client agency problem may create four notable consequences: (1) it may bias policy in favor of small homogenous groups; (2) it may exacerbate status quo bias; (3) it may promote expansive delegations of power and rulemaking to administrative agencies; and (4) it may impede systematic reforms to the policymaking process.
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.
Matthew C. Stephenson & Adrian Vermeule, Chevron Has Only One Step, 95 Va. L. Rev. 597 (2009).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Administrative Law & Agencies
,
Statutory Interpretation
,
Courts
,
Judges & Jurisprudence
Type: Article
Abstract
Chevron, U.S.A. v. Natural Resources Defense Council lays out a two-step process that courts must follow when they review a federal agency's construction of a federal statute. We argue that Chevron, rightly understood, has only one step. The single question is whether the agency's construction is permissible as a matter of statutory interpretation. The two Chevron steps both ask this question, just in different ways, and are thus mutually convertible: any opinion written in terms of one step can be written, without loss of content, in terms of the other step. Chevron's artificial division of a unitary inquiry causes material confusion among commentators and courts, and has no benefits; administrative law should jettison the two-step framework.
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 & Kristin E. Hickman, The Administrative Law of Borrowed Regulations: Legal Questions Regarding the Bankruptcy Law's Incorporation of IRS Standards, Norton Bankr. L. Adviser (Thompson/West), Jan. 2008, at 1.
Categories:
Taxation
,
Consumer Finance
,
Government & Politics
Sub-Categories:
Consumer Bankruptcy Law
,
Administrative Law & Agencies
,
Tax Policy
Type: Article
Abstract
In the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), Congress included a provision requiring bankruptcy courts evaluating individual debtors' financial circumstances to utilize certain monthly expense standards developed by the Internal Revenue Service for assessing taxpayers' ability to pay their taxes (the Standards). While the IRS retains a great deal of discretion in applying the Standards for its own purposes, bankruptcy courts have interpreted the BAPCPA as giving the Standards binding force in the bankruptcy context. This unusual arrangement - where a statute regulating one substantive area incorporates documents promulgated by an unrelated administrative agency for use in a different substantive area - presents bankruptcy judges with a set of unfamiliar and difficult administrative law questions. To what extent, if at all, should bankruptcy courts defer to IRS statements, contained in documents other than the Standards themselves, about how the Standards should be applied? May the IRS alter the Standards for its own purposes but not for bankruptcy purposes, or vice versa? What procedures must the IRS use when it modifies the Standards, especially in light of the fact that the Standards now have an apparently binding effect in bankruptcy cases? These questions have become even more pressing since the IRS in 2007 amended the Standards without public notice and comment and provided different effective dates for IRS and bankruptcy court use of the amended Standards. This essay explains from the standpoint of administrative law the difficulties that these questions present and suggest a few possible (and in some cases competing) administrative law theories for thinking about them.
Matthew C. Stephenson, Evidentiary Standards and Information Acquisition in Public Law, 10 Am. L. & Econ. Rev. 351 (2008).
Categories:
Civil Practice & Procedure
,
Government & Politics
Sub-Categories:
Evidence
,
Litigation & Settlement
,
Public Law
,
Administrative Law & Agencies
,
Courts
Type: Article
Abstract
This article considers the type of evidence that an overseer (e.g., a court) should require before allowing a government agent to take some proposed action. The court can increase agency research incentives by prohibiting actions unless the agent produces supporting evidence, and/or by permitting action even when the agent uncovers adverse evidence. The court thus faces a trade-off between an evidentiary standard's ex post effects on the agent's policy decision and its ex ante effects on the agent's incentive to do research. An extension allows the court to make research effort a precondition for action, regardless of the evidence produced.
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.
Ethan Bueno de Mesquita & Matthew C. Stephenson, Regulatory Quality Under Imperfect Oversight, 101 Am. Pol. Sci. Rev. 605 (2007).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Government Accountability
Type: Article
Abstract
We analyze the positive and normative implications of regulatory oversight when the policymaking agency can improve the quality of regulation through effort, but only some kinds of effort are observable by the overseer, and the overseer's only power is the ability to veto new regulation. Such oversight can increase the quality of agency regulation, but it also introduces inefficiencies—the agency underinvests in unobservable effort and overinvests in observable effort. Agencies have no incentive to conceal their activities from the overseer; the reforms that are likely to reduce inefficiency are therefore those that improve overseer expertise or lower the costs of agency disclosure, not those that compel disclosure. The normative implications depend on the relative severity of bureaucratic drift and slack problems. When slack is paramount, an overseer that is more anti-regulation than the agency or society improves social welfare, as long as it does not deter the agency from regulating entirely. When drift is paramount, oversight improves social welfare only when it deters regulation. In this case, regulatory oversight is weakly dominated by one of two alternatives: eliminating oversight or banning regulation.
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.
Matthew C. Stephenson, The Costs of Voting Rule Chevron: A Comment on Gersen and Vermeule's Proposal, 116 Yale L.J. Pocket Part 238 (2007).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Type: Article
Matthew C. Stephenson, The Strategic Substitution Effect: Textual Plausibility, Procedural Formality, and Judicial Review of Agency Statutory Interpretations, 120 Harv. L. Rev. 528 (2006).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Statutory Interpretation
,
Judges & Jurisprudence
,
Courts
Type: Article
Abstract
This Article presents a positive theoretical analysis of the relationship between the textual plausibility of an administrative agency’s statutory interpretation and the procedural formality with which the agency promulgates that interpretation. The central claim is that, from the perspective of an agency subject to judicial review, textual plausibility and procedural formality function as strategic substitutes: greater procedural formality will be associated with less textual plausibility, and vice versa. Greater textual plausibility increases an agency’s chances of a favorable judicial ruling but entails some sacrifice of policy discretion. Procedural formality is costly, but a reviewing court may give an agency more substantive latitude when the agency promulgates an interpretive decision via an elaborate formal proceeding. The court may view formal process as a proxy for variables that the court considers important but cannot observe directly, such as the significance of the interpretive issue to the agency’s policy agenda. Because procedural formality and textual plausibility are both costly methods for increasing the agency’s odds of surviving judicial review, a rational agency will choose the optimal mix of textual plausibility and procedural formality. Changes that increase or decrease the costs or benefits associated with one of these two variables will therefore have an indirect effect on the other variable as well. This Article develops the theoretical basis for this strategic substitution effect and explores its ramifications for administrative law.
Matthew C. Stephenson, Legislative Allocation of Delegated Power: Uncertainty, Risk, and the Choice Between Agencies and Courts, 119 Harv. L. Rev. 1035 (2006).
Categories:
Government & Politics
Sub-Categories:
Congress & Legislation
,
Administrative Law & Agencies
,
Courts
,
Statutory Interpretation
Type: Article
Abstract
This paper contributes to the positive political theory of legislative delegation by modeling formally the decision calculus of a rational legislator who must choose between delegation to an agency and delegation to a court. The model focuses in particular on the legislator's interest in diversifying risk, both across time and across issues, and her interest in avoiding interpretive inconsistency. The model emphasizes an institutional difference between agencies and courts that the extant literature has generally neglected: Agency decisions tend to be ideologically consistent across issues but variable over time, while court decisions tend to be ideologically heterogeneous across issues but stable over time. For the legislator, then, delegation to agencies purchases inter-temporal risk diversification and inter-issue consistency at the price of inter-temporal inconsistency and a lack of risk diversification across issues, while delegation to courts involves the opposite trade-off. From this basic insight the model derives an array of comparative statics regarding the conditions under which rational legislators would tend to prefer delegating to agencies over courts and vice versa. These results imply hypotheses as to how real-world variation in political and policy-specific variables, as well as variation in characteristics of judicial and agency approaches to statutory interpretation, may affect legislators' preferences regarding allocation of interpretive authority.
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, Legal Institutions and Informal Networks, 18 J. Theoretical Pol. 40 (2006).
Categories:
Banking & Finance
,
Civil Practice & Procedure
Sub-Categories:
Contracts
,
Economics
,
Transactional Law
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.
Matthew C. Stephenson, A Costly Signaling Theory of 'Hard Look' Judicial Review, 58 Admin. L. Rev. 753 (2006).
Categories:
Government & Politics
Sub-Categories:
Judges & Jurisprudence
,
Public Law
,
Administrative Law & Agencies
,
Courts
Type: Article
Abstract
Judges often review decisions made by government actors, such as agencies or legislatures, with greater expertise about the effects of different policy choices. One judicial response to this asymmetric information problem has been to shift the focus of review from a substantive evaluation of the policy to an assessment of the quality of the explanation the government offers in support of that choice. Proponents of this type of "hard look" review argue that it improves the quality of government decisions; critics charge that it imposes costs on government policymakers without providing useful information to reviewing courts. This paper offers an alternative perspective: Judicially-imposed explanation requirements can help reviewing courts overcome their informational disadvantage for reasons that are independent of their ability to assess the substantive content of government explanations. If producing impressive explanations is expensive, then the court can reason that the government's willingness to produce a high-quality explanation signals the government's belief that the proposed policy has large benefits. Furthermore, if the preferences of the court and government are positively correlated in expectation, then the fact that the government places a high value on the policy means the policy is more likely to be acceptable to the court. Therefore, judicial evaluation of explanation quality ameliorates the court's informational disadvantage, and may induce a court to uphold a government decision it would otherwise invalidate. The paper develops this costly signaling perspective on hard look review in the administrative law context, and then considers other applications in constitutional and criminal law.
Matthew C. Stephenson, A Trojan Horse in China?, in Promoting the Rule of Law Abroad: In Search of Knowledge 191 (Thomas Carothers ed., 2006).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
East Asian Legal Studies
,
Nonprofit & Nongovernmental Organizations
,
Human Rights Law
,
Developing & Emerging Nations
Type: Book
Ethan Bueno de Mesquita & Matthew C. Stephenson, Informative Precedent and Intrajudicial Communication, in Institutional Games and the U.S. Supreme Court 205 (James R. Rogers, Roy B. Flemming & Jon R. Bond eds., 2006).
Categories:
Government & Politics
Sub-Categories:
Politics & Political Theory
,
Judges & Jurisprudence
,
Courts
,
State & Local Government
,
Supreme Court of the United States
Type: Book
Matthew C. Stephenson, The Legislative Choice Between Agencies and Courts: A Response to Farber and Vermeule, 119 Harv. L. Rev. F. 173 (2006).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Courts
,
Congress & Legislation
Type: Article
Matthew C. Stephenson, Public Regulation of Private Enforcement: The Case for Expanding the Role of Administrative Agencies, 91 Va. L. Rev. 93 (2005).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Executive Office
Type: Article
Abstract
The Article argues that administrative agencies should have a much greater role in defining the scope of private rights of action than is contemplated by current law or most of the existing legal literature. The Article proposes an extension of Chevron doctrine to the question whether federal statutes authorize enforcement suits by private citizens: statutes which do not on their face clearly create or clearly preclude private rights of actions should be read as empowering the responsible administrative agency to make this determination. Accepting this proposal would significantly expand the influence of the executive branch over private enforcement policy, a development supported and defended in the Article.
Matthew C. Stephenson, Court of Public Opinion: Government Accountability and Judicial Independence, 20 J.L. Econ. & Org. 379 (2004).
Categories:
Government & Politics
Sub-Categories:
Government Accountability
,
Judges & Jurisprudence
,
Elections & Voting
,
Politics & Political Theory
,
Separation of Powers
Type: Article
Abstract
This paper contributes judicial politics literature by analyzing the conditions under which the public's ability to hold the elected government accountable might enable courts to exercise independent authority over policy. Using a model of policy-making in a system characterized by formal separation of powers, judicial dependence on government support, asymmetric information between the voters and the government, and political accountability of the policy branch, I show the conditions under which the public will force the government to cede power to the courts. This formal analysis makes three contributions to the literature. First, the model provides a theoretical justification for, and suggests limits to, the common assumption that disregard for judicial decisions is politically costly for the elected branches. Second, the model suggests a systematic account for a number of empirical observations about judicial politics. Third, the model demonstrates how systems of unified or separated powers can emerge endogenously.
Matthew C. Stephenson, Mixed Signals: Reconsidering the Political Economy of Judicial Deference to Administrative Agencies, 56 Admin. L. Rev. 657 (2004).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Empirical Legal Studies
,
Administrative Law & Agencies
,
Judges & Jurisprudence
,
Supreme Court of the United States
Type: Article
Abstract
This paper investigates rational choice explanations for patterns of Supreme Court decision-making with respect to the appropriate level of judicial deference to administrative agency decisions. In particular, I assess empirically the thesis that the Supreme Court expands deference when the Supreme Court is ideologically closer to the executive than to the circuit courts, and contracts deference when the opposite is true. I find little to no evidence supporting this "rational choice" theory of judicial deference. Given this surprising null finding, I offer alternative explanations for the data and suggest directions for future research.
Matthew C. Stephenson, A Tale of Two Theories: The Legal Basis for the EPA's Proposed Revision to the Routine Maintenance, Repair, and Replacement Exemption, [2003] 33 Envtl. L. Rep. (Envtl. Law Inst.) 10,789 (Oct. 2003).
Categories:
Environmental Law
,
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Type: Article
Matthew C. Stephenson, “When the Devil Turns … ”: The Political Foundations of Independent Judicial Review, 32 J. Legal Stud. 59 (2003).
Categories:
Government & Politics
Sub-Categories:
Courts
,
Judges & Jurisprudence
,
Congress & Legislation
,
Executive Office
,
Politics & Political Theory
Type: Article
Abstract
An independent judiciary with the power to constrain the executive and legislative branches is commonly thought to be the foundation of government under the rule of law. However, it is not obvious why those with political power would ever tolerate the constraints imposed by an independent court. I offer an explanation for independent judicial review that is based on ongoing political competition between risk‐averse parties. An independent judiciary is a mechanism through which these political competitors can enforce mutual restraint. But support for independent judicial review is sustainable only when (1) the political system is sufficiently competitive, (2) judicial doctrine is sufficiently moderate, and (3) parties are both sufficiently risk averse and forward looking. I employ a simple formal model to show how these variables influence the political sustainability of independent judicial review, and I also present the results of a preliminary empirical test that confirms the central hypotheses.
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.
Matthew C. Stephenson, A Trojan Horse Behind Chinese Walls?: Problems and Prospects of U.S.-Sponsored "Rule of Law" Reform Projects in the People's Republic of China, 18 UCLA Pac. Basin L.J. 64 (2000).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
East Asian Legal Studies
,
Nonprofit & Nongovernmental Organizations
,
Human Rights Law
Type: Article

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