Positive Political Science and Public Law I: The Administrative State
This course, the first of a two-semester sequence offered jointly in the Law School and the Department of Government, will study the application of a set of analytical techniques known as positive political theory (PPT) to the study of law and politics in the modern U.S. administrative state. The hallmark of PPT is the use of formal models, similar to those used by economists, to analyze how complex political institutions operate and to make predictions about how political and legal actors are likely to behave under different conditions. The advantages of this approach, according to its proponents, are that the construction of a formal model clarifies underlying assumptions that might otherwise be left implicit, ensures internal logical coherence, and facilitates the analysis of complex systems with many moving parts. Though still controversial, PPT has been extremely influential not only among political scientists, but also in the legal academy and beyond.
This seminar is designed to help students become intelligent, critical consumers of PPT literature. Through our study of the assigned readings (which will include both classic articles in the field and recent, unpublished work-in-progress) students will be exposed to a variety of PPT techniques and concepts. Students will also be encouraged to think critically about what makes a model effective or ineffective, how one ought to test or otherwise evaluate the predictions of PPT models, and the relevance of positive political analysis for normative and doctrinal debates. The specific substantive topics to be covered include legislative delegation of authority to administrative agencies, political oversight of the bureaucracy, the role of administrative procedures in shaping policy decisions, and judicial review of agency action.
Enrollment is limited to 12. If the course is oversubscribed, preference will be given to (1) students who intend to enroll in the spring workshop (Positive Political Science and Public Law II); (2) JD-PhD coordinated degree candidates; (3) Harvard Law School students planning to fulfill their third-year written work requirement with a paper on a topic related to this course; and (4) Harvard PhD candidates who plan to write a dissertation, or dissertation chapter, on a topic related to this course.
Fall Reading List
Sept. 7th: Introductory Meeting
· Peter H. Aranson, Ernest Gellhorn & Glen O. Robinson, “A Theory of Legislative Delegation” 68 Cornell Law Review 1 (1983)
· David B. Spence & Frank Cross, “A Public Choice Case for the Administrative State” 89 Georgetown Law Journal 97 (2000)
Sept. 14th: Congressional Oversight of the Bureaucracy
· Barry R. Weingast & Mark J. Moran, “Bureaucratic Discretion or Congressional Control? Regulatory Policymaking by the Federal Trade Commission” 91 Journal of Political Economy 765 (1983)
· John Ferejohn & Charles R. Shipan, “Congressional Influence on Bureaucracy” 6 Journal of Law, Economics & Organization 1 (Special Issue 1990)
- Susan Rose-Ackerman, “Comment on Ferejohn and Shipan’s ‘Congressional Influence on Bureaucracy’” 6 Journal of Law, Economics & Organization 21 (Special Issue 1990)
- Matthew L. Spitzer, “Extensions of Ferejohn and Shipan’s Model of Administrative Agency Behavior” 6 Journal of Law, Economics & Organization 29 (Special Issue 1990)
Sept. 21st: Legislative Control of Bureaucratic Discretion
· David Epstein & Sharyn O’Halloran, “Administrative Procedures, Information, and Agency Discretion” 38 American Journal of Political Science 697 (1994)
· Sean Gailmard, “Discretion Rather than Rules: Choice of Instruments to Constrain Bureaucratic Policy-Making” Typescript (2006)
Sept. 28th: Administrative Procedures as Instruments of Political Control
· Mathew D. McCubbins, Roger G. Noll & Barry R. Weingast, “Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies” 75 Virginia Law Review 431 (1989)
- Glen O. Robinson, “Commentary on ‘Administrative Arrangements and the Political Control of Agencies’: Political Uses of Structure and Process” 75 Virginia Law Review 483 (1989)
- Murray J. Horn & Kenneth A. Shepsle, “Commentary on ‘Administrative Arrangements and the Political Control of Agencies’: Administrative Process and Organizational Form as Legislative Responses to Agency Costs” 75 Virginia Law Review 499 (1989)
· Kathleen Bawn, “Choosing Strategies To Control the Bureaucracy: Statutory Constraints, Oversight, and the Committee System” 13 Journal of Law, Economics & Organization 101 (1997)
Oct. 5th: Choosing Between Agencies and Courts
· Morris P. Fiorina, “Legislative Choice of Regulatory Forms: Legal Process or Administrative Process?” 39 Public Choice 33 (1982)
- Albert Nichols, “‘Legislative Choice of Regulatory Forms’: A Comment on Fiorina” 39 Public Choice 67 (1982)
· Matthew C. Stephenson, “Legislative Allocation of Delegated Power: Uncertainty, Risk, and the Choice Between Agencies and Courts” 119 Harvard Law Review 1035 (2006)
- Adrian Vermeule, “The Delegation Lottery,” 119 Harvard Law Review Forum 105 (2006)
- Daniel A. Farber, “Modeling Coherence, Stability, and Risk Aversion in Legislative Delegation Decisions” 119 Harvard Law Review Forum 157 (2006)
- Daniel B. Rodriguez, “Delegation, Risk Diversification, and the Properly Political Project of Administrative Law” 119 Harvard Law Review Forum 202 (2006)
- Matthew C. Stephenson, “The Legislative Choice Between Agencies and Courts: A Response to Farber and Vermeule” 119 Harvard Law Review Forum 173 (2006)
Oct. 12th: Interest Groups in the Administrative Process
· David Epstein & Sharyn O’Halloran, “A Theory of Strategic Oversight: Congress, Lobbyists, and the Bureaucracy” 11 Journal of Law, Economics & Organization 227 (1995)
· Hugo Hopenhayn & Suzanne Lohmann, “Fire Alarm Signals and the Political Oversight of Regulatory Agencies” 12 Journal of Law, Economics & Organization 196 (1996)
Oct. 19th: The Political Insulation of Bureaucratic Agents
· McNollGast, “The Political Origins of the Administrative Procedure Act” 15 Journal of Law, Economics & Organization 180 (1999)
- Alan Schwartz, “Comment on ‘The Political Origins of the Administrative Procedure Act,’ by McNollGast” 15 Journal of Law, Economics & Organization 218 (1999)
· Rui de Figueiredo, “Electoral Competition, Political Uncertainty, and Policy Insulation” 96 American Political Science Review 321 (2002)
Oct. 26th – NO CLASS (Law School fly-out week)
Nov. 2nd: Cost-Benefit Analysis
· Eric Posner, “Controlling Agencies with Cost-Benefit Analysis: A Positive Political Theory Perspective” 68 University of Chicago Law Review 1137 (2001)
· Jason Scott Johnston, “A Game Theoretic Analysis of Alternative Institutions for Regulatory Cost-Benefit Analysis” 150 University of Pennsylvania Law Review 1343 (2002)
- Matthew D. Adler, “The Positive Political Theory of Cost-Benefit Analysis: A Comment on Johnston” 150 University of Pennsylvania Law Review 1429 (2002)
Nov. 9th: The Appointment and Removal of Agency Personnel
· Daniel F. Spulber & David Besanko, “Delegation, Commitment, and the Regulatory Mandate” 8 Journal of Law, Economics & Organization 126 (1992)
- Stephen F. Ross, “Comment on Spulber and Besanko” 8 Journal of Law, Economics & Organization 155 (1992)
- Lanny Arvan, “Comments on Daniel F. Spulber and David Besanko, ‘Delegation, Commitment, and the Regulatory Mandate’” 8 Journal of Law, Economics & Organization 159 (1992)
· Nolan McCarty, “The Appointments Dilemma” 48 American Journal of Political Science 413 (2004)
Nov. 16th: Bureaucratic Expertise
· Kathleen Bawn, “Political Control Versus Expertise: Congressional Choices About Administrative Procedures” 89 American Political Science Review 62 (1995)
· Matthew C. Stephenson, “Bureaucratic Decision Costs and Endogenous Agency Expertise” Typescript (2006)
Nov. 23rd – NO CLASS (Thanksgiving)
Nov. 30th: Judicial Deference to Agency Decisions
· William N. Eskridge, Jr. & John Ferejohn, “Making the Deal Stick: Enforcing the Original Constitutional Structure of Lawmaking in the Modern Regulatory State” 8 Journal of Law, Economics & Organization 165 (1992)
- Jack Knight, “Positive Models and Normative Theory: A Comment on Eskridge and Ferejohn” 8 Journal of Law, Economics & Organization 190 (1992)
- Daniel B. Rodriguez, “The Administrative State and the Original Understanding: Comments on Eskridge and Ferejohn” 8 Journal of Law, Economics & Organization 197 (1992)
- Peter L. Strauss & Andrew R. Rutton, “The Game of Politics and Law: A Response to Eskridge and Ferejohn” 8 Journal of Law, Economics & Organization 205 (1992)
· Linda R. Cohen & Matthew L. Spitzer, “Judicial Deference to Agency Action: A Rational Choice Theory and an Empirical Test” 69 Southern California Law Review 431 (1996)
Dec. 7th: Judicial Review of Agency Procedures
· Emerson H. Tiller, “Controlling Policy by Controlling Process: Judicial Influence on Regulatory Decision Making” 14 Journal of Law, Economics & Organization 114 (1998)
· Matthew C. Stephenson, “The Strategic Substitution Effect: Textual Plausibility, Procedural Formality, and Judicial Review of Agency Statutory Interpretations” Typescript (2006)
Positive Political Science and Public Law II: Research and Writing Workshop
This course is the second in a two-semester sequence on the application of positive political theory (PPT) to the study of law and politics in the modern U.S. administrative state. The goal of this workshop is to help students make the transition from being intelligent consumers of PPT literature to being effective producers of scholarly work that contributes to or draws on PPT scholarship. Each student will write a research paper, with the specific topic and type of paper determined by the individual student's interests and skill set. For example, students without a technical background may want to write papers that draw on PPT analyses to engage in normative or doctrinal legal debates, or to investigate PPT hypotheses using qualitative case studies. Students with more technical training may want to develop their own models or to conduct quantitative empirical tests.
Because the focus in the spring is on research and writing, the course will run more like a workshop than a seminar. We will have informal brainstorming sessions early in the semester; later, as students near completion of their drafts, students will present their papers and to critique their classmates' work in a format similar to an academic job talk or professional conference.
Enrollment is limited to 12. If the course is oversubscribed, preference will be given to (1) students who enrolled in the fall seminar (Positive Political Science and Public Law I); (2) JD-PhD coordinated degree candidates; (3) Harvard Law School students planning to fulfill their third-year written work requirement with the paper they write for this workshop; and (4) Harvard PhD candidates who plan to write a dissertation, or dissertation chapter, on a topic related to this course.
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