It is both humbling and daunting to have your book reviewed by so many eminent scholars. I am deeply grateful to Chris Walker and the JREG crew for hosting this symposium, and especially to Bridget Dooling for organizing it.   When I first began writing Bending the Rules: Procedural Politicking in the Bureaucracy, my hope was […]

The question of how political actors can overcome the principal-agent problem and “control” bureaucratic decisions has long fascinated political scientists.  In 1987, Matthew McCubbins, Roger Noll, and Barry Weingast (often referred to as “McNollgast”) put forth an argument regarding the use of procedures by legislatures to constrain bureaucratic behavior.  They maintained that by requiring agencies […]

I come to Rachel Potter’s Bending the Rules as a longtime member and sometime officer of the American Political Science Association’s organized section on Presidents and Executive Politics. When I joined that group back in the late ‘90s, it was known as the Presidency Research Group — and that intervening rebranding usefully illustrates the way […]

Regulatory scholars have traditionally viewed the three primary actors in the regulatory process – political overseers, regulatory agencies, and regulated entities – as operating in a set of nested principal-agent relationships. In the first, the overseer, which might be Congress, the president, or the courts, functions as the principal, and the regulator is the agent. […]

In Part 1 of this post, I explained why commentators are correct that Section 2 of the Fourteenth Amendment, known as the Penalty Clause, requires that the federal government collect citizenship data. In this Part, I will explain why it is nonetheless unlikely that this administration, or any administration, will attempt to actually enforce the […]

In Department of Commerce v. New York, the Supreme Court held that the Trump Administration had not provided an adequate justification for including a citizenship question on the census. Leading up to that decision and in the weeks after it, legal commentators including Josh Blackman, Josh Hammer, and David Rivkin and Gilson Gray, as well […]

Kisor v. Wilkie, in which the Court narrowly declined to overrule Auer deference while distinctly constraining its reach, shares with United States v. Mead Corp. and Skidmore v. Swift & Co.—so prominently mentioned in its opinions—the characteristic of being about an administrative action that, at root, is soft law, guidance. Quite appropriately, it did not […]

During the last week of its just-ended term, the Supreme Court handed down two eagerly anticipated decisions with significant implications for administrative law and, indeed, more broadly, for separation of powers constitutional jurisprudence. The two decisions are Gundy v. United States and Kisor v. Wilkie. While there will be thousands of pages in law reviews, […]

Good regulation is important to ensure proper functioning of economies and public services, and governments generally, regardless of ideological alignment, have resorted to regulations. However, Presidents occasionally favor limiting government by arguing inter alia that regulations may have negative and unintended consequences and become less effective or burdensome over time. Both the Brazilian and American […]

We are delighted to contribute to this symposium. Adriana Roberton’s article, Passive in Name Only, sheds important light on an overlooked but important part of the investment ecosystem, index providers. Our article, Corporate Governance by Index Exclusion, recently published in the Boston University Law Review, expands on the core message of Robertson’s article, that indexes […]

The recent popularity of index investing and corresponding influx of assets into passively managed mutual funds has generated a large literature in law and in finance about the implications for securities markets, antitrust, corporate governance, and beyond. But few have explored the index landscape itself. Professor Robertson’s article is an important exception, and her findings—in […]

Four years ago, Michael Herz published a fascinating article in which he argued that separation-of-powers devotees should stop worrying about Chevron deference. However it might once have been understood, Herz argued that Chevron deference descriptively was and normatively ought to be understood in 2015 as a two-step process that allowed both the judicial and the […]