Jody Freeman
Jody Freeman
Archibald Cox Professor of Law
Director, Environmental and Energy Law Program
Biography
Jody Freeman is the Archibald Cox Professor of Law, and a leading scholar of administrative law and environmental law. She is a member of the American Academy of Arts and Sciences, a Fellow of the American College of Environmental Lawyers, and a member of the Council on Foreign Relations. Freeman served as Counselor for Energy and Climate Change in the Obama White House in 2009-2010.
Professor Freeman has written extensively about climate change, environmental regulation and executive power.She is also known for her early work on “collaborative governance,” which helped to establish a field focused on public-private approaches to regulatory problems. She has served as a member of the Administrative Conference of the United States, an expert body that advises the federal government on how to improve the regulatory and administrative process. At Harvard Law School, she is the founding director of the Environmental and Energy Law Program, a pioneering research center on climate and energy policy. She also established the Law School’s first environmental law clinic.
Professor Freeman has been recognized as the second-most cited scholar in public law in the nation. Her book, Global Climate Change and U.S. Law (co-edited with Michael Gerrard), was published in 2015, and she has produced several other books on topics ranging from market mechanisms of environmental regulation to privatization of government functions. She is widely published in leading American law reviews and co-authors a leading casebook in administrative law. A volume of her administrative law articles was published in Chinese in 2010.
While in the White House, Professor Freeman was the architect of the president’s historic agreement with the auto industry to double fuel efficiency standards and set the first federal greenhouse gas standards, which launched the Obama administration’s climate program under the Clean Air Act. She also contributed to a host of initiatives on renewable energy, energy efficiency, transmission policy and oil and gas drilling, as well as the administration’s effort to pass legislation placing a market-based cap on carbon. After leaving the administration, she served as an independent consultant to the President's bipartisan Commission on the BP Deepwater Horizon Oil Spill, advising the commission on structural reforms at the Department of the Interior.
In addition to her duties at Harvard Law School, Professor Freeman is an independent director of ConocoPhillips, where she chairs the Public Policy Committee and serves on the Directors’ Affairs and Executive committees. She also serves on the Advisory Council of the Electric Power Research Institute, advising the electricity industry on technology gaps and broader social needs that would benefit from pioneering research.
Professor Freeman consults regularly for government and non-governmental parties, advising on litigation and regulatory strategy. She has lectured broadly around the world, including at the Nobel Institute, and in Asia and Europe. She can be heard regularly on NPR and on various podcasts on public affairs, has appeared on MSNBC and CNN, and written for the New York Times, Wall Street Journal, Guardian, Los Angeles Times, Politico, Vox and Foreign Affairs.
Interviews:
- To read Professor Freeman's analysis of the Amy Coney Barrett confirmation and implications for environmental law, and Biden's climate policy, go here.
- Listen to Professor Freeman and Jeffrey Holmstead reflect on their experiences in the George W. Bush administration (Holmstead) and Obama administration (Freeman), and discuss upcoming challenges in the event of either a Biden presidency or a second Trump term, at the link here.
- Click here to watch Professor Freeman give an overview of the state of climate, energy, and environmental policy on the eve of the 2020 election.
- To watch Professor Freeman talk about energy and environmental policy in a video for the Harvard University Center for the Environment, click here.
- In the video here, Professor Freeman and Professor Richard Lazarus offer an overview of major takeaways from the Supreme Court’s 2019 term.
- Professor Freeman speaks with MSNBC’s Ali Velshi to discuss President Trump’s proposed overhaul of the National Environmental Policy Act. Click here to watch.
- An interview with Professor Freeman that aired on NPR’s Morning Edition about the expectation that the Trump administration will revoke California's ability to set tighter environmental rules on car emissions, click here.
- In the video at this link, watch Professor Freeman speak with CNN’s Don Lemon about what we need from climate change policy.
- Click here to read an op-ed in the New York Times by Professor Freeman about Trump’s rollbacks of auto emissions rules, many of which are supported by the car industry.
- To hear Professor Freeman’s NPR interview covering updates on regulatory rollbacks, the automakers' deal with California, Trump administration attacks on science, and more, go here.
- For an interview with Professor Freeman on the Clean Power Plan repeal and replacement go here.
- To hear Professor Freeman compare different presidential legal theories on climate change, discuss how the rollback of power plant standards will fare in the courts; and explain why the "markets will clean up the electricity sector" argument is wrong, listen here.
- To watch Professor Freeman speak at the Norwegian Nobel Institute on U.S. Climate and Energy Policy in the Trump Administration and state policy demonstration projects, see here.
- To watch Professor Freeman in her last lecture to the Class of 2018, in which she delivered a talk titled "On Life and Law," see here.
- For an interview with Professor Freeman on prospects for congressional action on climate change go here.
- To hear Professor Freeman's webinar on the transition from Obama to Trump in climate & energy policy, go here.
- For an interview with Professor Freeman on clean energy trends and incoming Trump administration, listen here.
- For a video interview with Professor Freeman on the potential impact of a Trump presidency on climate and energy policy, go here.
- For Professor Freeman's interview with VOX on obstacles to a Trump rollback of energy/climate/environmental policy, see here.
- For Professor Freeman debates whether "EPA has gone Overboard” on climate policy in IQ2 debate here: edited version, see here: full debate, see here.
Jody Freeman & David Spence, Old Statutes, New Problems, 163 U. Pa. L. Rev. 1 (2014).
Categories:
Government & Politics
, Environmental Law
Sub-Categories:
Climate Change
, Energy & Utilities Law
, Oil, Gas, & Mineral Law
, Administrative Law & Agencies
, Congress & Legislation
, Statutory Interpretation
Global Climate Change and U.S. Law (Jody Freeman & Mike Gerrard eds., A.B.A. 2d ed. 2014).
Categories:
Environmental Law
Sub-Categories:
Climate Change
Jody Freeman & Jim Rossi, Agency Coordination in Shared Regulatory Space, 125 Harv. L. Rev. 1131 (2012).
Categories:
Government & Politics
, Disciplinary Perspectives & Law
, Health Care
, Discrimination & Civil Rights
Sub-Categories:
Law & Public Policy
, Law & Economics
, Law & Behavioral Sciences
, Administrative Law & Agencies
, Congress & Legislation
, Statutory Interpretation
, Executive Office
, Food & Drug Law
, Health Law & Policy
Jody Freeman, The EPA and Climate Change, in Fifty Years at the US Environmental Protection Agency: Progress, Retrenchment, and Opportunities 121 (A. James Barnes, John D. Graham, & David M. Konisky, eds., Rowman & Littlefield Publishers 2021).
Categories:
Environmental Law
Sub-Categories:
Climate Change
Abstract
In conjunction with the 50th anniversary of the creation of the Environmental Protection Agency, this book brings together leading scholars and EPA veterans to provide a comprehensive assessment of the agency’s key decisions and actions ...
Ronald A. Cass, Colin S. Diver, Jack M. Beermann & Jody Freeman, Administrative Law: Cases and Materials (Wolters Kluwer 8th ed., 2020).
Categories:
Government & Politics
, Legal Profession
Sub-Categories:
Administrative Law & Agencies
, Legal Education
Jody Freeman, The Environmental Protection Agency’s Role in U.S. Climate Policy- A Fifty Year Appraisal, 31 Duke Envtl. L. & Pol’y F. 1 (2020).
Categories:
Environmental Law
, Government & Politics
Sub-Categories:
Climate Change
, Administrative Law & Agencies
Jody Freeman, The Auto Rule Rollback Only Trump Seems to Want, N.Y. Times, Sept. 11, 2019, at A31.
Categories:
Environmental Law
, Government & Politics
, Disciplinary Perspectives & Law
Sub-Categories:
Transportation Law
, Climate Change
, Administrative Law & Agencies
, Executive Office
, Politics & Political Theory
Jody Freeman, The Limits of Executive Power: The Obama-Trump Transition, 96 Neb. L. Rev. 545 (2018).
Categories:
Government & Politics
, Environmental Law
Sub-Categories:
Climate Change
, Executive Office
, Administrative Law & Agencies
, Politics & Political Theory
Jody Freeman, Don’t Roll Back Vehicle Fuel Standards, N.Y. Times, Mar. 8, 2017, at A23.
Categories:
Environmental Law
Sub-Categories:
Climate Change
, Oil, Gas, & Mineral Law
Abstract
An editorial is presented on U.S. Donald Trump administration's attempt to rollback fuel efficiency standards for vehicles set by former President Obama and it states it is a retrograde step as the standards were set based on available technologies and to protect the environment.
Matthew Oakes, Donald Verrilli, Richard Pierce & Jody Freeman, The Future of Administrative Law, 47 Envtl. L. Rep. 10186 (2017).
Categories:
Government & Politics
, Environmental Law
Sub-Categories:
Administrative Law & Agencies
, Congress & Legislation
Jody Freeman, The Uncomfortable Convergence of Energy and Environmental Law, 41 Harv. Envtl. L. Rev. 339 (2017).
Categories:
Environmental Law
Sub-Categories:
Energy & Utilities Law
Abstract
Environmental law and energy law, two historically disparate fields, seem to be converging. Energy regulation has begun to seriously address environmental concerns for the first time, and environmental law is increasingly becoming a driver of energy policy. This Article describes the legal mechanisms through which greater congruence has been achieved, while acknowledging the still significant and stubborn barriers to true integration, which likely will be difficult to overcome. It shows that federal agencies have taken steps toward greater policy alignment by repurposing existing statutory provisions and relying on previously under-utilized legal authorities for the first time, in a carefully calibrated process of legal innovation. Yet it also shows this process to be meaningfully constrained by the agencies' adherence to their own distinct missions, and by the constraints of their particular statutory authorities.
The Article builds on the work of scholars who have lamented the divide between energy and environmental law, and urged that it be dismantled. Most of the accounts to date suggest that environmental rules and energy sector regulation, which are so obviously interrelated, inevitably will be drawn closer together. The analysis here looks more closely at the drivers of convergence to date, and presents a more nuanced picture of events. The trend toward greater policy alignment, while real, is limited. Energy and environmental regulators have not embraced convergence as an independent goal, but rather have achieved it incrementally and indirectly, as a consequence of pursuing their traditional missions during a time of change. These agencies have reacted to numerous external forces--technological innovation, market shifts, scientific developments, federal and state regulatory measures--which have prompted them to respond with their own initiatives. Yet they remain constrained by the bounds of their governing statutes and the confines of their long established regulatory roles. Tellingly, these agencies have tended to justify their policy innovations as necessary to fulfill their own traditional mandates, not to help other agencies realize theirs.
The Article ultimately concludes that claims of convergence between the two fields should be tempered. However desirable greater policy congruence might be, it has not been mandated by Congress, explicitly commanded by the President, or centrally directed by anyone else. And it is not inevitable. The most that can be said is that convenient alignments may arise when the imperatives of these different regulators coincide. Thus, the story of “convergence” between energy and environmental goals is one of gradual steps rather than great leaps--of interest-based compatibility rather than love-struck merger.
Jody Freeman, A Critical Look at “The Moral Case For Fossil Fuels”, 36 Energy L.J. 327 (2015).
Categories:
Environmental Law
, Government & Politics
Sub-Categories:
Climate Change
, Energy & Utilities Law
, Oil, Gas, & Mineral Law
, Natural Resources Law
Jody Freeman & Kate Konschnik, A Climate Plan Businesses Can Like, N.Y. Times, Aug. 4, 2015, at A23.
Categories:
Environmental Law
Sub-Categories:
Climate Change
Ronald A. Cass, Colin S. Diver, Jack M. Beermann & Jody Freeman, Administrative Law: Cases and Materials (Wolters Kluwer 7th ed. 2015).
Categories:
Government & Politics
, Legal Profession
Sub-Categories:
Administrative Law & Agencies
, Legal Education
Abstract
This outstanding author team presents administrative law as a vital force in policymaking, law enactment, and politics.
Look for these key features of the new edition:
• Addition of important new cases on recess appointments, Chevron Step Two, “Seminole Rock” deference, occupational licensing, and FOIA Exemption 2.
• Substantial enrichment of materials on formal adjudication under the APA.
• Splitting of the policymaking chapter into two chapters (choice of policymaking instruments and rulemaking) for greater clarity and teaching flexibility.
• Updating and streamlining of the materials on licensing.
• Presentation of important classic and secondary cases in squib format.
• Substantial streamlining, condensing, and reorganizing of background notes.
William W. Buzbee, Ann E. Carlson, Megan M. Herzog, Jody Freeman, Richard J. Lazarus, Thomas O. McGarity, Craig N. Oren, Richard L. Revesz & Cecilia Segal, Climate Regulation Under the Clean Air Act in the Wake of Utility Air Regulatory Group v. EPA, 39 Harv. Envtl. L. Rev. 1 (2015).
Categories:
Environmental Law
Sub-Categories:
Climate Change
Jody Freeman, Why I Worry About UARG, 39 Harv. Envtl. L. Rev. 9 (2015).
Categories:
Environmental Law
, Government & Politics
Sub-Categories:
Climate Change
, Energy & Utilities Law
, Administrative Law & Agencies
, Supreme Court of the United States
, Statutory Interpretation
Jody Freeman, Teaching an Old Law New Tricks, N.Y. Times, May 30, 2014, at A27.
Categories:
Environmental Law
Sub-Categories:
Renewable Resources Law
, Oil, Gas, & Mineral Law
, Energy & Utilities Law
Jody Freeman & Kate Konschnik, U.S. Climate Change Law and Policy: Possible Paths Forward, in Global Climate Change and U.S. Law 795 (Jody Freeman & Michael B. Gerrard eds., A.B.A. 2nd ed. 2014).
Categories:
Environmental Law
Sub-Categories:
Climate Change
Abstract
This comprehensive, current examination of U.S. law as it relates to global climate change begins with a summary of the factual and scientific background of climate change based on governmental statistics and other official sources.
Jody Freeman, Network Federalism (Nov. 18, 2013).
Categories:
Environmental Law
, Government & Politics
Sub-Categories:
Energy & Utilities Law
, Administrative Law & Agencies
, Federalism
Abstract
“Dual federalism,” “cooperative federalism,” and “federalism all the way down” — these are some of the terms constitutional and administrative law scholars have used to try to capture how decision making power is allocated between the federal and state governments. Drawing from examples in the field of energy and environmental regulation, this article presents an alternative conception of such power arrangements as “network” federalism. The network analogy best captures three key features of how certain contemporary governance systems actually work: authority is divided among different levels of government, dispersed across institutions at the same level of government and shared among both public and private actors. The Article explores the example of U.S. electricity regulation, which divides authority between the Federal Energy Regulatory Commission and state public utility commissions; disperses relevant power across multiple agencies at each level of government; relies on private bodies to oversee system reliability and establish critical operational standards; and deputizes non-profit regional organizations to coordinate, control and monitor the electricity system. Such networks are complex but not necessarily chaotic. They can be orderly while also being dynamic. Network federalism puts a premium on coordination and dispute resolution, and requires legal mechanisms for negotiating boundaries. From this perspective, it is misleading to describe policy as driven either by the government or the private sector, or led by federal versus state actors. Instead, policy is the product of the network.
Jody Freeman, Op-Ed., Obama Must Walk a Climate Tightrope, L.A. Times, July 9, 2013.
Categories:
Environmental Law
, Government & Politics
Sub-Categories:
Climate Change
, Executive Office
Jody Freeman, Op-ed., Should the Federal Government Regulate Fracking?, Wall St. J. , Apr. 14, 2013.
Categories:
Environmental Law
, Government & Politics
Sub-Categories:
Energy & Utilities Law
Jody Freeman, Op-ed., The Wise Way to Regulate Gas Drilling, N.Y. Times, July 5, 2012.
Categories:
Environmental Law
Sub-Categories:
Oil, Gas, & Mineral Law
Jody Freeman & Jim Rossi, Improving Coordination of Related Agency Responsibilities (Vand. Pub. L. Res. Paper No. 13-8, May 30, 2012).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
, Government Accountability
, Executive Office
, Congress & Legislation
Abstract
Interagency coordination is one of the great challenges of modern governance. This Report, prepared for the Administrative Conference of the United States (ACUS), highlights the challenges presented by fragmented agency responsibilities. Rather than oppose all agency fragmentation, the Report highlights instances when it presents governance problems and describes the variety of tools that Congress, the President, and agencies may use to manage coordination challenges more effectively. These tools include agency interaction requirements, formal interagency agreements, and joint policymaking.
This Report also assesses the relative strengths and weaknesses of these coordination tools using the normative criteria of efficiency, effectiveness, and accountability, and it concludes that the benefits of coordination will frequently be substantial. To varying extents, these instruments can reduce regulatory costs for both government and the private sector, improve expertise, and ameliorate the risk of bureaucratic drift without compromising transparency. Coordination can also help to preserve the functional benefits of shared or overlapping authority, such as promoting interagency competition and accountability, while minimizing dysfunctions like discordant policy.
Building on the existing literature, and past proposals of organizations like ACUS, the Report recommends a comprehensive executive branch effort to promote stronger interagency coordination and improve coordination instruments. The Report also recommends some more targeted reforms designed to promote coordination and its benefits, including development of agency policies on coordination, sharing of best practices, ex post evaluation of at least a subset of coordination processes, and tracking of outcomes and costs. These reforms could be adopted in a new Executive Order on agency coordination; added as amendments to existing Executive Order 12866 or 13563; adopted as part of the Office and Mangement and Budget’s implementation of the Government Performance and Results Act; or prescribed by Congress via statute. Agencies might also voluntarily adopt a number of these reforms.
This Consultants' Report served as a background for ACUS Recommendation 2012-5, "Improving Coordination of Related Agency Responsibilities," adopted on June 15, 2012.
Jody Freeman, Climate and Energy Policy in the Obama Administration, 30 Pace Envtl. L. Rev. 375 (2012).
Categories:
Environmental Law
, Government & Politics
Sub-Categories:
Climate Change
, Energy & Utilities Law
, Executive Office
Jody Freeman & Andrew Guzman, Climate Change and U.S. Interests: Reply to Responses, 41 Envtl. L. Rep. 10726 (2011).
Categories:
Environmental Law
Sub-Categories:
Climate Change
Abstract
In this reply we address the comments and critiques of our article, Climate Change and U.S. Interests, published in the Columbia Law Review and excerpted in the Environmental Law Reporter.
Jody Freeman, The Obama Administration's National Auto Policy: Lessons from the "Car Deal", 35 Harv. Envtl. L. Rev. 344 (2011).
Categories:
Environmental Law
, Government & Politics
, Discrimination & Civil Rights
Sub-Categories:
Law & Public Policy
, Climate Change
, Administrative Law & Agencies
, Congress & Legislation
, Executive Office
, Government Accountability
, State & Local Government
, Statutory Interpretation
, Separation of Powers
Jody Freeman, Op-ed., The Good Driller Award, N.Y. Times, July 1, 2010, at A31.
Categories:
Environmental Law
Sub-Categories:
Oil, Gas, & Mineral Law
Daniel A. Farber, Jody Freeman & Anne Carlson, Cases and Materials on Environmental Law (West Acad. Publ'g 8th ed. 2009).
Categories:
Environmental Law
, Legal Profession
Sub-Categories:
Legal Education
Abstract
The Eighth Edition provides up-to-date treatment of climate change issues.
Jody Freeman & Andrew T. Guzman, Sea Walls are Not Enough: Climate Change and U.S. Interests (U.C. Berkeley Public Law Research Paper No. 1357690, Mar. 12, 2009).
Categories:
Environmental Law
Sub-Categories:
Climate Change
Abstract
The public policy debate on the appropriate American response to climate change is now in full swing. There are no longer significant voices disputing that climate change is real or that it is primarily the result of human activity. The issue today is what the United States should do about climate change given the risks the country faces and the likely economic impacts. The question is whether putting a price on carbon domestically is worth the cost.
In this Article we make the case that the United States should act aggressively to mitigate the effects of climate change. In doing so we take on and debunk the "climate change winner" argument, which asserts that the United States is likely to fare well in a warmer world, at least compared to most other states and, therefore, faces no rational incentive to invest in expensive mitigation efforts that will largely benefit other states. In this view, impacts on the United States are best addressed through a strategy of adaptation rather than mitigation - the construction of both literal and figurative sea walls to reduce the effects of global warming.
The dominant response to this argument has been an appeal to a perceived moral obligation on the United States based on its wealth and its historical greenhouse gas emissions. Though we are sympathetic to this moral argument, this Article takes a different approach.
We demonstrate that even if one accepts that the premises of the climate change winner argument - that impacts on the United States will be less severe than elsewhere and that the United States is not morally obliged to help foreign states - the case for American action on climate change is strong. Considering only the narrow self-interest of the United States, we show that the climate change winner argument is wrong.
We explain that existing estimates systematically underestimate the likely economic impact of climate change, and we provide rough estimates of what a more complete accounting would reveal. The sources of downward bias in existing models are numerous and include undue optimism about future warming, overlooked asymmetries around expected increases in temperature, and a failure to account for catastrophic events, non-market costs, cross-sectoral impacts, and impacts on productivity. Also ignored by existing estimates are the ways in which climate change impacts abroad will spillover into the United States through economic effects, national security, migration and disease, creating additional costs.
This Article shows that climate change is not simply a problem for the rest of the world. It is far likelier than current models suggest to lead to serious negative consequences for the United States. If this is so, the country should take prompt and aggressive action to address climate change, not out of benevolence or guilt, but out of simple self-interest.
Jody Freeman & Andrew Guzman, Climate Change and U.S. Interests, 109 Colum. L. Rev. 1531 (2009).
Categories:
Environmental Law
Sub-Categories:
Climate Change
Abstract
See also, 41 Envtl. L. Rep. 10695 (2011).
The public policy debate on the appropriate American response to climate change is now in full swing. There are no longer significant voices disputing that climate change is real or that it is primarily the result of human activity. The issue today is what the United States should do about climate change given the risks the country faces and the likely economic impacts. The question is whether putting a price on carbon domestically is worth the cost.
In this Article we make the case that the United States should act aggressively to mitigate the effects of climate change. In doing so we take on and debunk the “climate change winner” argument, which asserts that the United States is likely to fare well in a warmer world, at least compared to most other states and, therefore, faces no rational incentive to invest in expensive mitigation efforts that will largely benefit other states. In this view, impacts on the United States are best addressed through a strategy of adaptation rather than mitigation – the construction of both literal and figurative sea walls to reduce the effects of global warming.
The dominant response to this argument has been an appeal to a perceived moral obligation on the United States based on its wealth and its historical greenhouse gas emissions. Though we are sympathetic to this moral argument, this Article takes a different approach.
We demonstrate that even if one accepts that the premises of the climate change winner argument – that impacts on the United States will be less severe than elsewhere and that the United States is not morally obliged to help foreign states – the case for American action on climate change is strong. Considering only the narrow self-interest of the United States, we show that the climate change winner argument is wrong.
We explain that existing estimates systematically underestimate the likely economic impact of climate change, and we provide rough estimates of what a more complete accounting would reveal. The sources of downward bias in existing models are numerous and include undue optimism about future warming, overlooked asymmetries around expected increases in temperature, and a failure to account for catastrophic events, non-market costs, cross-sectoral impacts, and impacts on productivity. Also ignored by existing estimates are the ways in which climate change impacts abroad will spillover into the United States through economic effects, national security, migration and disease, creating additional costs.
This Article shows that climate change is not simply a problem for the rest of the world. It is far likelier than current models suggest to lead to serious negative consequences for the United States. If this is so, the country should take prompt and aggressive action to address climate change, not out of benevolence or guilt, but out of simple self-interest.
Government by Contract: Outsourcing and American Democracy (Jody Freeman & Martha L. Minow eds., Harvard Univ. Press 2009).
Categories:
Government & Politics
Sub-Categories:
Government Accountability
, Government Transparency
Abstract
The dramatic growth of government over the course of the twentieth century since the New Deal prompts concern among libertarians and conservatives and also among those who worry about government’s costs, efficiency, and quality of service. These concerns, combined with rising confidence in private markets, motivate the widespread shift of federal and state government work to private organizations. This shift typically alters only who performs the work, not who pays or is ultimately responsible for it. “Government by contract” now includes military intelligence, environmental monitoring, prison management, and interrogation of terrorism suspects.
Outsourcing government work raises questions of accountability. What role should costs, quality, and democratic oversight play in contracting out government work? What tools do citizens and consumers need to evaluate the effectiveness of government contracts? How can the work be structured for optimal performance as well as compliance with public values?
Government by Contract explains the phenomenon and scope of government outsourcing and sets an agenda for future research attentive to workforce capacities as well as legal, economic, and political concerns.
Jody Freeman & Adrian Vermeule, Massachusetts v. EPA: From Politics to Expertise, 2007 Sup. Ct. Rev. 51 (2008).
Categories:
Environmental Law
, Government & Politics
Sub-Categories:
Administrative Law & Agencies
, Supreme Court of the United States
Abstract
In Massachusetts v. Environmental Protection Agency (2007), the Supreme Court held, among other things, that the EPA has statutory authority to regulate greenhouse gases under the Clean Air Act, and that the agency cannot decline to do so on political grounds. We analyze the logic of MA v. EPA and its broader implications for administrative law and regulatory policy. We locate MA v. EPA in the context of the Justices' increasing worries about the politicization of administrative expertise, particularly under the Bush administration. The majority's solution for this worry, we suggest, is a kind of expertise-forcing: the Court attempts to ensure that agencies actually do exercise expert judgment, and that they do so free from outside political pressures, even or especially political pressures emanating from the White House or political appointees in the agencies. Whereas a line of caselaw and commentary stemming from Chevron USA Inc. v. Natural Resources Defense Council sees presidential politics and expertise as complementary, expertise-forcing has its roots in an older vision of administrative law, one in which presidential politics and expertise are fundamentally antagonistic. Because the Court subjects the denial of a rulemaking petition to hard look review, we suggest that MA v. EPA is State Farm for a new generation.
J. R. DeShazo & Jody Freeman, Timing and Form of Federal Regulation: The Case of Climate Change, 155 U. Pa.. L. Rev. 1499 (2007).
Categories:
Environmental Law
, Government & Politics
Sub-Categories:
Climate Change
, Administrative Law & Agencies
, Congress & Legislation
, Public Law
Jody Freeman, Extending Public Accountability Through Privatization: From Public Law to Publicization, in Public Accountability: Designs, Dilemmas and Experiences 83 (Michael L. Dowdle, ed., Cambridge Univ. Press, 2006).
Categories:
Government & Politics
Sub-Categories:
Government Accountability
Abstract
In this chapter, I suggest a counterintuitive way to view American privatization trends. Instead of seeing privatization as a means of weakening the state and reducing public accountability, I imagine it as a mechanism for expanding public accountability's reach into realms traditionally thought private. In other words, privatization can be a means of "publicization," a process through which private actors increasingly commit themselves to traditionally public goals as the price of access to lucrative opportunities to deliver goods and services, and to perform functions that might otherwise be provided directly by the state. Rather than compromising democratic norms of accountability, due process, equality, and rationality -- as some critics of privatization fear it will -- privatization might extend these norms to private actors through the judicious use of legislative, executive, judicial, and even social oversight.
Jody Freeman & Charles D. Kolstad, Moving to Markets in Environmental Regulation: Lessons from Twenty Years of Experience (Oxford Univ. Press 2006).
Categories:
Environmental Law
, Government & Politics
Sub-Categories:
Administrative Law & Agencies
Abstract
Over the last decade, market-based incentives have become the regulatory tool of choice when trying to solve difficult environmental problems. Evidence of their dominance can be seen in recent proposals for addressing global warming (through an emissions trading scheme in the Kyoto Protocol) and for amending the Clean Air Act (to add a new emissions trading systems for smog precursors and mercury--the Bush administration's "Clear Skies" program). They are widely viewed as more efficient than traditional command and control regulation. This collection of essays takes a critical look at this question, and evaluates whether the promises of market-based regulation have been fulfilled. Contributors put forth the ideas that few regulatory instruments are actually purely market-based, or purely prescriptive, and that both approaches can be systematically undermined by insufficiently careful design and by failures of monitoring and enforcement. All in all, the essays recommend future research that no longer pits one kind of approach against the other, but instead examines their interaction and compatibility. This book should appeal to academics in environmental economics and law, along with policymakers in government agencies and advocates in non-governmental organizations.
J.R. DeShazo & Jody Freeman, Public Agencies as Lobbyists,105 Colum. L. Rev. 2217 (2005).
Categories:
Government & Politics
, Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
, Administrative Law & Agencies
, Congress & Legislation
, Politics & Political Theory
, Public Law
, Statutory Interpretation
Jody Freeman, The Story of Chevron: Environmental Law and Administrative Discretion, in Environmental Law Stories (Richard Lazarus & Oliver Houck eds., Found. Press 2005).
Categories:
Environmental Law
, Government & Politics
Sub-Categories:
Administrative Law & Agencies
Abstract
.
Jody Freeman & Daniel A. Farber, Modular Environmental Regulation, 54 Duke L.J. 795 (2005).
Categories:
Environmental Law
, Government & Politics
Sub-Categories:
Energy & Utilities Law
, Oil, Gas, & Mineral Law
, Administrative Law & Agencies
, Congress & Legislation
, Public Law
, Politics & Political Theory
Jody Freeman, Extending Public Law Norms Through Privatization, 116 Harv. L. Rev. 1285 (2003).
Categories:
Government & Politics
Sub-Categories:
Public Law
, Administrative Law & Agencies
J.R. DeShazo & Jody Freeman, The Congressional Competition for Control of Delegated Power, 81 Tex. L. Rev. 1443 (2003).
Categories:
Government & Politics
Sub-Categories:
Congress & Legislation
, Administrative Law & Agencies
Abstract
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.
Jody Freeman & Laura Langbein, Regulatory Negotiation and the Legitimacy Benefit, 9 N.Y.U. Envtl. L.J.. 60 (2001).
Categories:
Environmental Law
, Government & Politics
Sub-Categories:
Administrative Law & Agencies
Abstract
Reprinted in 31 Envtl. L. Rep. 10811-51 (2001).
Jody Freeman, The Contracting State, 28 Fla. St. U. L. Rev. 155 (2001).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Abstract
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.
Jody Freeman, Environmental Supplement, in Encyclopedia of the American Constitution (Leonard W. Levy, Kenneth L. Karst et al. eds., 2nd ed. 2000).
Categories:
Environmental Law
Jody Freeman, The Private Role in Public Governance, 75 N.Y.U. L. Rev. 543 (2000).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Abstract
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.
Jody Freeman, Private Parties, Public Functions and the New Administrative Law, in Recrafting the Rule of Law: The Limits of Legal Order 331 (David Dyzenhaus ed., 1999).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Abstract
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.
Jody Freeman, Collaborative Governance in the Administrative State, 45 UCLA L. Rev. 1 (1997).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Abstract
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.
Education History
- S.J.D. Law Harvard Law School, 1995
- LL.M. Law Harvard Law School, 1991
- LL.B. Law University of Toronto, 1989
- B.A. Stanford University, 1985
Current Courses
- Administrative Law, Fall 2020
- Legislation and Regulation 4, Fall 2020