Process choice

Regulation scholars have long searched for the best tools to use to achieve public policy goals, generating an extensive body of research on what has become known as instrument choice. By contrast, analysis of options for structuring how officials make regulatory decisions – process choice – remains in relative infancy. Notwithstanding the emphasis legal scholars and political economists have placed on administrative procedures, surprisingly little research has investigated why regulators choose among different process options or what value they and the public receive from different choices. In their book, Regulation by Litigation, Andrew Morriss, Bruce Yandle, and Andrew Dorchak make a significant contribution by empirically and normatively examining regulators' choices between notice‐and‐comment rulemaking, negotiated rulemaking, and what they call “regulation by litigation.” This review article considers three central questions about regulation by litigation. First, how if at all does regulation by litigation differ from other uses of litigation to achieve policy goals? Second, why do regulators choose litigation over other process options? Third, is regulation by litigation as bad as Morriss, Yandle, and Dorchak say it is? By addressing these conceptual, empirical, and normative questions, this review article not only reveals the specific strengths and limitations of the book, Regulation by Litigation, but also highlights more general opportunities and challenges for future research on process choice.     

The durability of governance reform: A two-wave audit of notice and comment policymaking in China

The notice and comment process, in which government organizations make public draft laws and regulations and solicit feedback on these proposals, is a prominent governance reform in contemporary China. This article examines the durability of notice and comment policymaking by conducting a pair of audits of the practices of dozens of central government ministries and provincial governments. There are a number of reasons to expect that it is difficult to sustain governance reforms in China. Nevertheless, the audits—which the authors carried out in 2014 and 2021—demonstrate that, subject to a number of constraints, notice and comment policymaking was routinely implemented by government organizations throughout the period under analysis. Although the notice and comment process is a durable governance reform, additional research is needed before it can be concluded that the procedure brings more than a veneer of transparency to Chinese policymaking.     

Does the amount of participation matter? Public comments,agency responses and the time to finalize a regulation

The notice and comment rulemaking process is a fundamental part of how agencies write regulations. While this process is starting to receive more empirical attention, the question of how the number of comments that an agency receives affects its decision-making process has received little examination. This paper uses Boolean analysis to examine nine rules from two agencies at the Department of Health and Human Services and evaluates the impact of a high volume of comments on agency changes to proposed rules and the time an agency takes to finalize a proposed rule. These nine cases suggest that agencies are most likely to change their proposals when they receive a high volume of comments on highly complex rules that are not very politically salient. Highly complex rules are also likely to take a long time to finalize when there are many public comments however it is often other factors that cause a long delay between proposed and final rules.

The Origins of Conflict in Polycentric Governance Systems

Natural resources are governed by polycentric systems, which can be conceptualized as an “ecology of games” in which policy actors participate in multiple policy forums governing interdependent issues. This article analyzes why actors perceive different payoffs across the forums in which they participate, ranging from mutually beneficial games of cooperation to conflictual zero-sum games in which one actor's gain means another actor's loss. The authors develop hypotheses at the level of the individual, the forum, and the overall polycentric system and test them using survey data collected in three research sites: Tampa Bay, Florida; the Paraná River delta, Argentina; and the Sacramento–San Joaquin River delta, California. The empirical findings suggest that levels of conflict in policy forums are higher when the actors who participate in them are concerned with hot-button issues, when the forums have large and diverse memberships, and in systems with a long history of conflict. The results shed new light on the drivers of conflict and cooperation in complex governance systems and suggest ways to manage conflict.     

Race,Representation, and the Voting Rights Act

Despite wide scholarly interest in the Voting Rights Act, surprisingly little is known about how its specific provisions affected Black political representation. In this article, we draw on theories of electoral accountability to evaluate the effect of Section 5 of the Voting Rights Act, the preclearance provision, on the representation of Black interests in the 86th to 105th congresses. We find that members of Congress who represented jurisdictions subject to the preclearance requirement were substantially more supportive of civil rights–related legislation than legislators who did not represent covered jurisdictions. Moreover, we report that the effects were stronger when Black voters composed larger portions of the electorate and in more competitive districts. This result is robust to a wide range of model specifications and empirical strategies, and it persists over the entire time period under study. Our findings have especially important implications given the Supreme Court's recent decision in Shelby County v. Holder.     

The Puzzle of Private Rulemaking: Expertise, Flexibility, and Blame Avoidance in U.S. Regulation

The standard federal regulatory process in the United States involves notice and comment by government bureaus. This traditional agency model of public rulemaking faces difficulties in taking full advantage of the expertise of stakeholders, and it has been criticized as being slow and inflexible; therefore, it is not surprising that alternative institutional forms involving the delegation of rulemaking to stakeholders have appeared. Yet it is surprising that private rulemaking has been used to allocate valuable goods such as transplant organs. Why is private rulemaking used as an allocative institution of governance? The answer recognizes the advantages it offers in certain rapidly changing circumstances in which essential expertise inheres in the stakeholders, as well as the asymmetric political rewards involved in the allocation of highly valued goods, which create incentives for politicians to avoid blame by delegating substantive rulemaking authority to nongovernmental organizations.     

‘Utterly Disgraceful’: Social Media and the Workplace

Social media use by Australian public servants has given rise to questions pertaining to their political rights, impartiality and privacy outside of work. Drawing on the recent case Starr v Department of Human Services these issues are explored. The findings suggest that social media use has heightened tensions around public servant's rights to comment on issues of the day, and its use by employees both inside and beyond the workplace remains contested terrain.     

Is the government exhausting its powers? An empirical examination of eminent domain exercises in New York City pre- and post-Kelo

A controversial U.S. Supreme Court decision in Kelo v. City of New London (2005) which did not limit the use of state's eminent domain powers, led to an unprecedented legislative reaction by almost all 50 states. Of all, New York State stands out as one of the single states not to respond with a legislative amendment. In this study, I ask whether the state's predation was greater in the years following these legal and political developments, in light of the freedom which was granted to local politicians by both the Supreme Court and the state's legislators. The article hypothesizes that contrary to common perceptions, judicial decisions impact local government actions even when no limits on the use of powers are being posed. I use rigorous statistics and scrupulously defined data to expand scholarly understanding of the aftermath of the judicial decision in Kelo. The main finding is that the decision has in fact affected political behavior, but in the opposite direction than commonly expected: politicians in New York City acted consistently with public opinion, which was hostile too Kelo, not by changing the law, but by changing their practice. Studying all known taking exercises in New York City between 1991 and 2019, the paper finds no increase in the number of development projects involving condemnations after 2005. In fact, the probability of a taking for economic development or urban renewal dropped by 90%. The use of eminent domain for such projects declined even when both state and federal courts refrain from interposing any actual limit on its use. The paper lends qualified support to an alternative assertion that takings decisions by government officials are largely shaped by planning and political needs and that officials are sensitive to revealed public preferences even when there is no constitutional or legal impediment on their exercise of power.     

Altruism as a source of self-interested behavior

When individuals participate in the process that determines their own redistributive obligations and claims, biased outcomes can be expected. This bias can be substantially eliminated by partitioning the collectivity into groups that set one another's redistributive obligations in a cycle.     

Coercion,Information, and the Success of Sanction Threats

This article explores when and why sanction threats succeed in extracting concessions from the targeted country. We focus on two different, albeit not mutually exclusive, mechanisms that can explain the success of sanction threats. The first mechanism relates to incomplete information regarding the sanctioner's determination to impose sanctions and suggests that threats help to extract concessions by revealing the sanctioner's resolve. The second mechanism underscores the direct impact of common interest between the two countries and explains the success of sanction threats by the targeted country's greater dependence on this link between the two countries and the sanctioner's ability to exploit this dependence. We test the hypotheses using a new strategic structural estimator. Our results provide no evidence in favor of the informational hypothesis, while lending robust support for the coercive hypothesis.     

Supreme Court Litigants and Strategic Framing

Although litigants invest a huge amount of resources in crafting legal briefs for submission to the Supreme Court, few studies examine whether and how briefs influence Court decisions. This article asks whether legal participants are strategic when deciding how to frame a case brief and whether such frames influence the likelihood of receiving a favorable outcome. To explore these questions, a theory of strategic framing is developed and litigants' basic framing strategies are hypothesized based on Riker's theory of rhetoric and heresthetic as well as the strategic approach to judicial politics. Using 110 salient cases from the 1979–89 terms, I propose and develop a measure of a typology of issue frames and provide empirical evidence that supports a strategic account of how parties frame cases.     

The age of apology: evidence from the Israeli public discourse

At the time of its presentation, Derrida's 'Force of law' represented deconstruction's perhaps most direct statement on the possibility of justice and its most explicit engagement with law. The ensuing responses to that paper have typically focused on deconstruction's position regarding the force and authority of law, and especially on what is taken as Derrida's theory of justice. As such, 'Force of law' is often discussed in isolation to mainstream legal philosophy or is otherwise understood to represent a radical counter to that tradition. It is possible to take a different direction, however, by considering the event of that paper's presentation and reception in relation not only to the existing disciplines of legal studies, but also to the problematic of discipline itself. Re-reading some of the work of contemporary legal philosophy in the light of that problematic may thus enable a certain questioning of the disciplinary divisions whose very institution underscores the 'radical' nature of deconstruction's 'critique' of traditional understandings of law. Such a re-reading may even allow a speculation upon a certain (trans)disciplinarity of deconstruction, reconsidering the latter's relation to traditions.     

Putting culture into the Cold War: the Cultural Relations Department (CRD) and British Covert Information Warfare

In 1943 the British Foreign Office created an obscure outfit called the Cultural Relations Department (CRD), to manage the growing organization of intellectual, cultural, social and artistic contacts designed to promote Allied goodwill. It became clear early on that the Soviet Union was already well-organized in this field, with many seemingly independent international organizations claiming to represent ‘world opinion’ yet operating as fronts for Moscow's foreign policy objectives. In the three years before 1948, when the more widely-known Information Research Department began its operations, CRD was the cutting edge of Britain's informational Cold War, focused very much upon the twin issues of culture and organized youth. This essay will examine this little-explored organization by focusing upon these twin issues and its neglected records in FO 924 in the Public Record Office, London.     

Legitimacy through targeted transparency? Regulatory effectiveness and sustainability of lobbying regulation in the European Union

Regulating interest groups’ access to decision makers constitutes a key dimension of legitimate and accountable systems of government. The European Union explicitly links lobbying regulation with the democratic credentials of its supranational system of governance and proposes transparency as a solution to increase legitimacy and regulate private actors’ participation in policy making. This lobbying regulation regime consists of a Transparency Register that conditions access to decision makers upon joining it and complying with its information disclosure requirements. The extent to which transparency‐based regulatory regimes are successful in ensuring effective regulation of targeted actors and in being recognised as a legitimate instrument of governance constitutes a key empirical question. Therefore, the study asks: Do stakeholders perceive the transparency‐based EU lobbying regulation regime to be a legitimate form of regulatory governance? The study answers by building on a classic model of targeted transparency and proposes perceived regulatory effectiveness and sustainability as two key dimensions on which to evaluate the legitimacy of the Register. The arguments are tested on a new dataset reporting the evaluations of 1,374 stakeholders on the design and performance of the EU lobbying regulation regime. The findings describe a transparency regime that scores low in perceived effectiveness and moderate to low in sustainability. Citizens criticise the quality of information disclosed and the Register's performance as a transparency instrument. The Register did not effectively bridge the information gap between the public and interest groups about supranational lobbying. In terms of sustainability, interest organisations appreciate the systemic benefits of transparency, but identify few organisation‐level benefits. Organisations that are policy insiders incur more transparency costs so they instrumentally support transparency only insofar it suits their lobbying strategies and does not threaten their position. Insiders support including additional categories of organisations in the Register's regulatory remit but not more types of interactions with policy makers. They support an imperfect regulatory status quo to which they have adapted but lack incentives to support increased transparency and information disclosure. Targeted transparency proves an ineffective approach to regulating interest groups’ participation in EU policy making, constituting a suboptimal choice for ensuring transparent, accountable and legitimate supranational lobbying.     

Are There Universal Collective Rights?

The first part of the paper focuses on the current debate over the universality of human rights. After conceptually distinguishing between different types of universality, it employs Sen’s definition that the claim of a universal value is the one that people anywhere may have reason to see as valuable. When applied to human rights, this standard implies “thin” (relative, contingent) universality, which might be operationally worked-out as in Donnelly’s three-tiered scheme of concepts–conceptions–implementations. The second part is devoted to collective rights, which have recently become a new topic of the human rights debate. This part provides the basis of political–philosophical justification and legal–theoretical conceptualization of collective rights, as rights directly vested in collective entities. The third part dwells on the problem of universality of collective rights. It differentiates between the three main collective entities in international law—peoples, minorities, and indigenous peoples—and investigates whether certain rights vested in these collectives might, according to Sen’s standard, acquire the status of the universal ones. After determining that some rights are, in principle, plausible candidates for such a status in international law, this paper concludes by taking notice of a number of the open issues that still need to be settled, primarily by the cooperative endeavor of international legal scholars and legal theorists.     

Mononationals,hyphenationals, and shadow-nationals: multiple citizenship as practice

Multiple citizenship has in recent decades moved from an unwanted phenomenon in international relations to a fairly common transnational status. Multiple citizenship has nevertheless so far been studied mainly as a political and juridical status by comparing national legislations. Much less notice has been given to actual dual citizens' citizen participation and construction of citizens' identities. Only when citizenship is studied as these kinds of practices do the hypothetic possibilities and problems associated with the status get their meanings and contents. This paper concentrates on examining dual citizens' identifications to their respective citizenships and how these affiliations transfer into possible citizen participation. Results are based on extensive analysis of survey (n = 335) and interviews (n = 48) carried out among dual citizens living in Finland. Contents and forms of dual citizens' national identification and citizen participation were reviewed through ideal types: resident-mononationals, expatriate-mononationals, hyphenationals, and shadow-nationals.     

Formal Procedures, Informal Processes, Accountability, and Responsiveness in Bureaucratic Policy Making: An Institutional Policy Analysis

This study examines the role of public notice and comment in the development of 42 rules. These procedures can provide useful information to policy makers about the preferences of those who stand to be affected by agency actions. More importantly, they serve as cues for the accommodation of interests and the resolution of conflict through processes that are grounded in agencies' accountability to political officials. Yet, an examination of the interrelationship between formal, procedural constraints and the informal processes surrounding them reveals that the effects of notice and comment in promoting bureaucratic responsiveness are limited in ways that have received little systematic analysis. A consideration of the tension between the instrumental goal of procedural accountability and the political tasks that often dominate bureaucratic policy making suggests that it is desirable to return to the original use of notice and comment as a device for exposing agencies to the views of affected interests.     

Gender and the Personal Shaping of Public Administration in the United States: Mary Anderson and the Women's Bureau, 1920–1930

Scholars of public administration in the United States traditionally view the 1920s as a decade when the administrative orthodoxy, emphasizing efficiency and organizational structure, dominated the field. This viewpoint recently has been challenged by arguments that the social justice–oriented views of women progressives and the philosophy of pragmatism also influenced public administration. However, no one has examined how women public administrators implemented exceptions to the prevailing, masculine viewpoints of administrative objectivity and the strict dichotomy between politics and administration during the 1920s. Using Mary Anderson (1872–1964), the longtime director of the U.S. Department of Labor's Women's Bureau, as a case study, this article examines how her experiences as a woman worker and labor organizer influenced her advocacy of an alternative view of public administration, and how, from 1920 through 1930, she established the Women's Bureau within the prevailing orthodoxy yet also made the government agency a notable exception through its vigorous support of social justice feminism, particularly during and after the 1926 national Women's Industrial Conference.     

Jurisgenerative role of auditors in transnational labor governance

This article builds on the model of regulatory intermediaries by incorporating insights from the field of legal hermeneutics about the process through which the meaning of a legal rule emerges. It describes how intermediaries can take on a jurisgenerative role in the development of legal rules through their interpretation of legal rules. This role is demonstrated through an analysis of social audits from Chinese and Vietnamese factories involved in the Fair Labor Association (FLA). The analysis illustrates how the integration of fundamental labor rights into the FLA's private Code of Conduct requires auditors to develop new interpretations of the Freedom of Association as a result of uncertainties and contradictions between legal requirements at various levels, as well as with the FLA's own rules. Through this empirical analysis, the article contributes to the literature by identifying regulatory intermediaries’ jurisgenerative capacities when they monitor fundamental labor rights referenced by private governance instruments. It further highlights why legal and regulatory governance scholars need to consider the transformative effects that transnational private labor governance may have on international labor law.