There are already so many thorough analyses, illustrative applications, and thoughtful extrapolations of Jon Michaels’s provocative thesis, it took some time to decide where anything more might be usefully contributed. It is, I think, at the conceptual role “privatization” plays in Constitutional Coup’s core argument. The threat privatization poses to our fundamental constitutional order, according […]
I have long admired Jon Michaels’ work on separation of powers and government privatization, so I was thrilled to learn he had further synthesized these strands of his research in a book-length treatment: Constitutional Coup: Privatization’s Threat to the American Republic. And I’m excited we’re hosting this symposium on the book here at the Notice and […]
Jon Michaels has written an important book — and I say that even though I suspect that he and I disagree about many things! Although the administrative state has value, it also “has its share of problems.” For instance, the federal government sometimes overreaches in “ominous” and even “crushing” ways. Like the Chief Justice, I’m […]
This week, the Notice and Comment blog is hosting a web symposium on Jon Michaels’s book, Constitutional Coup: Privatization’s Threat to the American Republic. In the years leading up to this book, Michaels, who is a Professor of Law at UCLA Law School, has written extensively and thoughtfully on administrative law, constitutional structure, and the […]
It’s no secret that agencies communicate with the public. Nor is it a secret that the public often listens. It is worth thinking about, however, why the public listens. Sometimes, of course, it is a not a mystery why what an agency says is important. Imagine, for instance, that an agency has authority to waive […]
The Administrative Procedure Act and the question of judicial deference to agency action may be at the center of the typical Ad Law course syllabus. But they are far from the main topics in the story of How Agencies Communicate uncovered in this symposium. Rather than studiously following the notice and comment process to produce […]
In administrative law doctrine, much significance is placed not only on what agencies say but on the format they use to say it. Interpretations of statutes expressed in legislative rules carry the force of law—i.e., are legally binding on private parties—so must comply with Administrative Procedure Act (APA) notice and comment requirements and usually are […]
As Elizabeth Porter and Kathryn Watts noted in their contribution to this symposium on how agencies communicate (as well as Michael Herz in his contribution), federal agencies have begun to utilize social media and other channels to explain and promote their preferred regulatory outcomes. Sometimes such communications take place during the public comment period on […]
The most official way for an agency to communicate with the public is through binding legislative rulemaking. But an agency can send out communications much faster, and at higher volume, if it communicates by guidance—that is, by general public statements, nonbinding, giving its current thinking on how it will interpret the law and use its […]
When regulated entities or the public want to know what a regulation means, where do they look? They will, of course, focus on the text of the regulation. But what other sources bear on how regulations apply? In particular, what is the most authoritative source agencies issue to assist in determining the meaning and application […]
For a democracy to function even a little bit like it should, the public needs to know what the government is up to. A robust press is one mechanism. FOIA is another. But the most obvious is for the government just to tell the public about its projects and plans. Unfortunately, while the government has […]
As the various entries in this Symposium show, agencies enjoy considerable flexibility in determining whether, when, and how to publicly communicate their enforcement priorities and legal interpretations. But sometimes, through statutes like the Freedom of Information Act, an agency may be forced to reveal things that it would otherwise keep out of the public’s eye. For […]
Would you like to hear from the government? Many people might say no. Or at least, not usually. But, of course we hear from the government all the time. Many times, this contact comes from administrative agencies. Agencies shape, among many other things, the air we breathe, the taxes we pay, and the question of […]
Historically, rulemaking has been defined by dense text and linear analysis. Yet, during the Obama administration, a colorful new visual rulemaking universe emerged—one that splashed rulemaking-related images, GIFs, and videos across social media channels. Agencies, interested stakeholders, and President Obama himself used sophisticated visual tools to develop and engender support for—or opposition to—high-stakes federal rulemakings. […]
Although our active blogging on the CFPB debacle now makes last week seem like ancient history, we had a historic occasion to host Judge Stephen F. Williams as a guest blogger. (Here is my introduction; here is Sam Halabi’s review of Judge Williams’s book; and his posts are here, here, and here.) I hope our […]