Notice & Comment

Ad Law Reading Room: “In Search of the Public Interest,” by Jodi L. Short

Today’s Ad Law Reading Room entry is “In Search of the Public Interest,” by Jodi L. Short, which was recently published in the Yale Journal on Regulation and posted to SSRN. Here is the abstract:

“Public interest” standards in statutory delegations to agencies represent the greatest hopes and the darkest fears of the U.S. administrative state. On the one hand, the public interest standard provides a vessel for agencies to infuse policymaking with the moral and ethical commitments of the community. On the other hand, regulation in the public interest opens the door to the arbitrary exercise of tyrannical state power. Despite the lofty aspirations and ominous warnings about regulation in the public interest, little is known about how agencies actually decide what is in the public interest when charged by statute to do so. This Article seeks to move beyond the rhetoric surrounding regulation in the public interest by conducting a grounded inquiry into how agencies implement public interest standards in the statutes they administer. Using data from agency adjudications under four different statutory schemes dating from the early twentieth century to the present, the study investigates how agencies define the public interest, whether agencies use public interest standards with unfettered discretion based on whatever criteria they wish (as some fear), and whether agencies apply public interest standards in ways that infuse policy making with common good or community values (as some hope).

The study’s findings will surprise many and please few. First, it demonstrates that agencies applying statutory public interest standards exhibit rational and predictable patterns that comport with rule-of-law values of transparency and consistency. Second, the study finds that agencies rarely consider what might be characterized as “common good” or “community” values in their public interest analyses unless such considerations are mandated by statute, and that agencies tend to discount such considerations even when statutorily required. Third, in terms of substantive conceptions of the public interest, the study reveals that in most contexts studied, economic arguments are the most-raised and most-accepted justifications for why a particular outcome is in the public interest.

The study makes three contributions to scholarly and jurisprudential understandings of what it means to regulate in the public interest. First, it provides a novel descriptive account of what agencies actually do when authorized to regulate some facet of social or economic life in the public interest, extending important strands of administrative law scholarship on bureaucratic accountability, public utility law, and the meaning of “publicness.” Second, it dispels common concerns that regulation under a broad public interest delegation violates rule-of-law or separation-of-powers principles. The analysis presented here provides evidence that statutory public interest standards do not pose nondelegation problems and suggests a methodology for analyzing other broad statutory mandates likely to be subjected to nondelegation challenges. Third, the study casts doubt on the willingness and ability of agencies to champion common good or community values even under clear statutory direction. This has important implications for how advocates of values-informed administrative decision making should approach their project.

At the heart of Short’s article is a fascinating set of case studies involving various agencies operating pursuant to “public interest” mandates. Short examines how those agencies have conceptualized and implemented their obligation to act according to the public interest. Perhaps somewhat paradoxically, Short’s findings are interesting precisely because the studied agencies are revealed to be, well, somewhat boring. The agencies implemented their public interest mandates in relatively predictable ways and tended to stick to a consistent framework over time.

As Short notes, the findings contained in “In Search of the Public Interest” may partially deflate both critics of the administrative state as well as some of its staunchest supporters. The agencies studied do not exhibit some of the worst tendencies predicted by those fearful of open-ended grants of discretion. Nor do the agencies appear eager to embrace a particularly values-based (dare I say romantic) conception of the public interest. Rather, and potentially disappointingly to some, the agencies’ decisionmaking was most often dominated by broadly economic thinking and appeals to efficiency. Regardless of your normative priors, however, Short’s article is well worth a read.

The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.

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