Today’s Ad Law Reading Room entry is “Rubber Stamps,” by Adam M. Samaha. Here is the abstract:

Rubber-stamping is more often alleged than understood. The basic idea involves someone with formal authority following the views of another actor without serious second thought. Such arrangements are broadly disreputable yet terrifically common in government, and they lack thorough treatment in legal scholarship. Recent allegations surrounding the President’s autopens, Department of Government Efficiency dictates, and congressional capitulation make the inquiry timely, but the relevant structural issues are more enduring than daily partisan controversies. This article addresses rubber-stamping in government generally, and its interrelated contributions are conceptual, positive, legal, and normative. Altogether, the case against rubber-stamping in government is surprisingly limited, whatever its reputation.

The article first offers a working concept of rubber-stamping distinguished from alternative decision structures, while emphasizing boundary problems and empirical uncertainty. Second, the article develops explanations and justifications for rubber-stamping beyond self-interested schemes, including designs to achieve decision quality at tolerable cost and second-best adaptations to legal constraints and work overloads. Complaints frequently distract from those possibilities, and from deeper concerns about power and results. Third, the article explores current law on rubber-stamping, which is largely permissive yet not well-settled. Where the practice is legally disfavored, the demand for thoughtfulness seems modest and likely unenforceable. Finally, the article compiles system-design options and small-scale tactics that may reduce rubber-stamping, to the extent we remain concerned. But the most effective interventions tend to be costliest (such as thoughtfulness audits and live explanations), while cheaper tricks have limited effects (such as personal sign offs and waiting periods). Moreover, the emergence of inexpensive machines that automate reason-writing makes rubber-stamping easier to hide and harder to stop.

These considerations suggest measured and smart targeting. We can prioritize anti-rubber-stamping efforts by thinking harder about the relevant concepts and uncertainties, the most plausible explanations and justifications for official behavior, and the range of feasible interventions based on their legality, likely efficacy, and costs. At minimum, we can better appreciate that rubber-stamping is an arresting charge associated with both damaging and respect-worthy conduct, and that existing law and legal institutions leave space for both. That much mindfulness is enough for us to become smarter about government — which must manage rubber-stamping well to earn respect, and which we can make better without every government actor having second thoughts.

“Rubber Stamps” is a fun article on a much-invoked but rarely interrogated concept. Samaha helpfully evaluates rubberstamping as a strategy for dividing responsibility for decisionmaking among actors and compares it to alternatives such as delegation. In doing so, he uncovers its potential strengths as well as its limitations. The article is not limited to administrative law—indeed, its impressive range is one of “Rubber Stamps” primary strengths. But worry not. There is plenty on which an administrative-law nerd might profitably chew.

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.