Notice & Comment

Sohoni on Gersen & Stephenson on Over-Accountability (AdLaw Bridge Series)

After an extended hiatus and by (somewhat) popular demand, I’m bringing back the weeklyAdministrative Law Bridge Series, which highlights terrific scholarship in administrative law and regulation to help bridge the gap between theory and practice in the regulatory state. I have a backlog of a few dozen pieces I’d love to highlight, and these reviews likely will be shorter than in the past. I’ll also make sure to highlight the articles reviewed each month by the Administrative Law Section Contributing Editors over at Jotwell—the Journal of Things We Like (Lots).

This month over at Jotwell Mila Sohoni reviews Over-Accountability by Jacob Gersen and Matthew Stephenson, which was published in the Journal of Legal Analysis in 2014. Here’s a summary of the paper from the SSRN abstract (the paper is available on SSRN here):

Although ensuring the “accountability” of agents to their principals is widely considered a core objective of institutional design, recent work in political economy has identified and elucidated an important class of situations in which effective accountability mechanisms can decrease, rather than increase, an agent’s likelihood of acting in her principal’s interests. The problem, which we call “over-accountability,” is essentially an information problem: sometimes even a fully rational but imperfectly informed principal (e.g., the citizens) will reward “bad” actions rather than “good” actions by an agent (e.g. the President). In these cases, not only do accountability mechanisms fail to remedy the agency problem inherent in representative government, they actually make the problem worse. This Article offers a conceptual and empirical overview of over-accountability problems, and also considers a range of potential solutions. By surveying both the distortions themselves and a range of possible responses, this article aspires to assist both public law scholars and institutional reformers in producing more effective solutions.

Entitled Too Much of a Good Thing, Professor Sohoni’s Jotwell review of the piece is worth a read (as is the article being reviewed). Here’s a taste of the review:

The authors explain that this basic overaccountability dynamic can manifest in a variety of ways. To signal their competence, agents can pander (take action that “cater[s] excessively” to the public); they can posture (take bold action to look good to the public); or they can be persistent (act stubbornly, so that the public doesn’t perceive them to have made a mistake). To signal their lack of capture, agents can act in way that is populist (in a way that unduly burdens a minority or interest group); conversely, to signal their lack of bias, agents can act in way that is politically correct (in way that markedly illustrates an absence of animus towards some given group). In a lively and clear fashion, the article marries its analysis of formal models of such behavior with concrete examinations of how these varieties of overaccountability might emerge in different legal contexts, from debates over affirmative action to the sentencing behavior of elected state court judges.

“[O]ne of the great rewards of this paper,” Professor Sohoni concludes, is that “it forces one to see what was once familiar in an entirely new way. If you are someone who has made use of the ‘workhorse concept’ (p.186) of accountability (as I have done), Professors Gersen and Stephenson will make you want to look that “workhorse” in the mouth.”

I’m curious about the reactions agency officials have to the Gersen/Stephenson over-accountability argument. If you’re willing to share, please drop me a line, and I will of course keep your comments anonymous.