Faculty Bibliography

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.

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.

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.