Faculty Bibliography

In this Article, we challenge the "monolithic view" of Congressional control over delegated power, which assumes that oversight committees will enforce the wishes of an enacting majority. In contrast with this prevailing view we argue that Congress consists of rivals who compete for control over power delegated to agencies. Individual committee members with access to oversight tools vie for control over agencies, both with each other and with past enacting majorities, to further their own interests. We argue, contrary to the conventional understanding, that committee members sometimes defy majority preferences rather than reinforce them. We claim that Congress creates an internal accountability problem when it delegates oversight power to its committees, just as it creates a problem of control when it delegates administrative power to agencies. Indeed, one delegation might exacerbate the other. And together, this "double delegation" creates a significant risk that agency decision making will be driven by the interests of small sub-majorities of Congress, and that this influence will subvert statutory commands. Playing off Bickel's famous characterization of the judiciary, we call this problem the "sub-majoritarian difficulty." Sub-majoritarianism may be so severe as to re-introduce parochialism into the implementation of federal statutes meant to impose national solutions - a phenomenon we call "backdoor federalism." We support our theoretical argument with an empirical test of decision making by the US Fish and Wildlife Service. In the literature on delegated power, our argument shifts the question from how best to make administrative agencies accountable to Congress, to who ought to be the principal, given the viability of multiple legislative principals. We speculate about how political scientists and legal scholars, respectively, might react to this competition among principals, and we explore measures that might minimize the adverse effects of sub-majoritarianism.

Reprinted in 31 Envtl. L. Rep. 10811-51 (2001).

n this article, Professor Freeman argues that contract is an increasingly important administrative and regulatory instrument, with significant implications for administrative law. She focuses on two species of contract-contracts to provide services or benefits (already well entrenched in the United States) and regulatory contracts (a nascent, but noteworthy, development) and argues that, in an era of widespread contracting out and devolution, and at a time of increasing experimentation with contracts as regulatory instruments, the pressure for government/private contracts to absorb public law norms of fairness, rationality and accountability will intensify. Conceptually, she claims, government/private contracts of both sorts force an uncomfortable interface between private and public law. They pose a host of doctrinal and theoretical problems for which administrative law provides no ready answers. Despite their significant risks, however, Professor Freeman suggests that government/private contracts might have significant benefits that we ought not to overlook. Indeed, contracts themselves can be potentially crucial accountability mechanisms in an era of greater private involvement in administration and regulation. They could, for example, allow third party beneficiaries to hold the contracting parties accountable for their commitments. Moreover, contracts may enable government agencies to accomplish indirectly, what, for legal or political reasons, they cannot achieve directly. As with grants in aid between the federal and state governments, public/private contracts could be a means of extending government priorities and policies to private actors, and of exacting concessions and gains that might otherwise be beyond its regulatory reach. Under the right circumstances Freeman argues, regulatory contracts could prove more -- or at least no less -- effective and democratic, than other regulatory instruments. The rise of contract may therefore signal not so much the retreat of the state, as a reconfiguration of the state's role in governance. That reconfiguration could conceivably amount to a net gain in accountability, or at least not a net loss.

This article proposes a conception of governance as a set of negotiated relationships between public and private actors. In this conception, public and private actors negotiate over policymaking, implementation and enforcement. The conception evokes an image of decisionmaking in which there is no center of control, such as the agency. This alternative conception challenges the public/private distinction in administrative law, and invites a reconsideration of the traditional administrative law pre-occupation with the accountability of "public" actors. It recognizes the pervasive and varied roles played by private actors in every aspect of governance. The article offers theoretical support for the new conception, drawing on both public choice theory and critical legal studies to argue that there is no purely private realm and no purely public one. There are only negotiated relationships between public and private actors. The argument then proceeds through a series of empirical examples that demonstrate the roles played by private actors in a variety of administrative contexts, including health care delivery and prison management as well as regulatory standard-setting, implementation and enforcement. This inquiry forces administrative law to reckon with private power, but calls into question the field's almost uniform defensiveness toward private actors. Private actors do not merely exacerbate the legitimacy crisis in administrative law; they may also be regulatory resources, capable of producing accountability. From the perspective of the new conception, public and private actors together produce accountability, through a combination of traditional and non-traditional mechanisms. This notion of "aggregate" accountability produced through horizontal negotiation is offered as a contrast to the formal, hierarchical approach to accountability that dominates the field. The article concludes with a new administrative law agenda, which places public/private interdependence at the heart of the inquiry.

This collection of essays on the rule of law focuses on the traditional question whether the rule of law is necessarily the rule of moral principles, the question of the legitimacy of law.

This paper argues that the discretion-constraining impulses of most regulatory reinvention efforts fail to respond to the most serious weaknesses of rulemaking, implementation and enforcement. This is partly because reformers are encumbered by the theory and practice of interest representation and partly because administrative law lacks an alternative model of administrative decision making. The paper's purposes are threefold: (1) to offer a normative vision of collaborative governance against which to evaluate proposals for reform. Collaboration requires problem-solving, provisional solutions, broad participation, public-private sharing of responsibility and a flexible, engaged agency. (2) to illustrate how some innovative administrative processes, such as regulatory negotiation and negotiated permitting, embody elements of the collaborative model and to explain why, despite their promise, they fall short of the collaborative ideal. As examples, the paper relies on four case studies, two each of regulatory negotiation and EPA's Project XL. (3) to argue that the pursuit of collaboration requires a willingness to experiment with non-traditional source of accountability in order to address the problem of legitimacy.