Articles

Professor of Law, Fordham University. J.D., 1985, Harvard University.

In this Article, Professor Diller examines the tremendous changes in the administrative structure of the welfare system that have occurred since 1996. The new administrative model emerging from welfare reform eschews reliance on rules and instead invests ground-level agency personnel with substantial discretion. This shift redistributes power between welfare recipients and administrators. Central authorities continue to maintain control by channeling the discretion that ground-level officials exercise in order to achieve particular outcomes. This channeling takes place through a variety of means, including performance-based evaluation systems and efforts to redefine the institutional culture of welfare offices. These techniques are part of a broad trend in public administration that seeks to make government agencies function like entrepreneurial organizations. This new model raises serious questions of public accountability. In the new system of welfare administration, critical policy chokes are reflected in incentive and evaluation systems rather than formal rules. As policy decisions are made in ways that are less visible, there are fewer opportunities for public input. Moreover, in the new regime the efficacy of administrative hearings as a means of holding agencies accountable to recipients is diminished. Professor Diller suggests several possible means of facilitating public participation and fair treatment in this area. He concludes by urging that scholars, policymakers, and advocates focus their attention on developing new mechanisms to provide effective public participation in administrative policymaking and implementation.

In this Article Michael Simons examines the ways in which the federalization of crime can be controlled. Simons argues that prosecutorial discretion is the most important variable in the federalization process and that controlling prosecutorial discretion is the key to controlling federalization. He presents the Child Support Recovery Act as a model for how prosecution guidelines for federal criminal statutes can provide such control Federalization of criminal child support enforcement has been successful because federal prosecutors have exercised discretion in a manner consistent with the concerns expressed by the bench and the academy about federalization. Simons concludes by exploring how such guidelines would prevent the implementation of other criminal statutes from usurping state authority, overwhelming the federal courts, and treating individual defendants unfairly.

Upon surveying antitrust enforcement pursuant to Section 2 of the Sherman Act, Thomas Piraino concludes that the standard for determining violations has become muddled and confusing. He proposes a new standard to assist courts in distinguishing beneficial from harmful conduct; one that focuses on the monopolist’s substantive competitive purpose. Under that standard, conduct should be illegal under Section 2 if it makes no economic sense other than as a means of perpetuating or extending monopoly power. Piraino illustrates the benefits of this proposed standard by applying it to the Microsoft litigation.

In this Article, Professor Anne Poulin explores the role of standby counsel appointed to assist pro se defendants in criminal cases. Many courts and attorneys assume that acting as standby counsel entails less work than serving as lead counsel and that an active standby counsel would threaten the defendant’s right to selfrepresentation. Professor Poulin argues instead that a properly functioning standby counsel actually shoulders a greater burden than normal, following the case from pretrial procedures through sentencing, and not only providing assistance when the defendant asks, but also remaining alert for issues that the defendant missed. Professor Poulin concludes that a standby counsel must act as a shadow counsel, preparing the case as full as if she were the lead counsel.

In this Article, Professor Freeman proposes a conception of governance as a set of negotiated relationships between public and private actors. Under this view, public and private actors negotiate over policy making, implementation, and enforcement, thereby decentralizing the decision-making process. Recognizing the pervasive and varied roles played by private actors in all aspects of governance, Professor Freeman challenges the public/private distinction in administrative law and invites a reconsideration of the traditional administrative law preoccupation with the accountability of “public” actors. The Article offers theoretical support for the new conception, drawing on both public choice theory and critical legal studies to argue that there is neither a purely private realm, nor a purely public one-only negotiated relationships between public and private actors. Professor Freeman’s argument proceeds through a series of empirical examples that demonstrate the roles played by private actors in a variety of administrative contexts, including health care delivery and prison management, as well as regulatory standard-setting, implementation, and enforcement. Professor Freeman not only invites administrative law to reckon with private power, but challenges the field’s almost uniform defensiveness toward private actors. She further argues that actors do not merely exacerbate the legitimacy crisis in administrative law; they may also be regulatory resources, capable of producing accountability. From the perspective of the new conception, public and private actors together produce accountability through a combination of traditional and nontraditional mechanisms. This notion of “aggregate” accountability produced through horizontal negotiation is offered as a contrast to the formal, hierarchical approach to accountability that dominates administrative law. Professor Freeman concludes by proposing a new administrative law agenda that places public/private interdependence at the heart of the inquiry.

In this Article, Professors Hanoch Dagan and James White study the most recent challenge raised by mass torts litigation: the interference of governments with the bilateral relationship between citizens and injurious industries. Using the tobacco settlement as their case study, Dagan and White explore the important benefits and the grave dangers of recognizing governments’ entitlement to reimbursement for costs they have incurred in preventing or ameliorating their citizens’ injuries. They further demonstrate that the current law can help capture these benefits and guard against the entailing risks, showing how subrogation law can serve as the legal foundation of the governments’ claims, and how takings law can be used as a check against governmental abuse.

In this Article, Eleanor Brown seeks to shift the framework through which we view Afrocentric academies. In the spirit of Justice Clarence Thomas’s concurrence in Missouri v. Jenkins, Brown proposes that Afrocentrism represents an innovative educational response to the crisis in urban black communities. Applying social psychological literature, she argues that poor urban environments are ill equipped to provide the intersubjective reinforcement that is essential to healthy identity formation. A significant proportion of black youth have developed an alternative means of validating themselves, adopting a core of “oppositional” or “gangsta” norms that they associate with being authentically “black.” A primary feature of these norms is the rejection of mainstream opportunity-enhancing behaviors, such as educational achievement and law abidance. Drawing on the philosophical insight that black youth who privilege a detrimental picture of themselves are essentially being misrecognized, Brown suggests that Afrocentrism may be viewed as an attempt to recognize properly black youth. She outlines an Afrocentric curriculum that articulates a vision of black culture as constituted by a history of political struggle and promises to meet the intersubjective needs of black youth. Addressing several liberal criticisms, including the concerns that Afrocentrism undermines healthy participation in the body politic and constrains individual autonomy, Brown concludes by offering a compromise: Liberal educational goals should predominate during primary education and an Afrocentric curriculum should guide secondary education.

How should judges choose doctrines of statutory interpretation? Judges explicitly or implicitly choose interpretive doctrines-canons of construction, rules governing the admissibility and weight of extrinsic sources, and rules about the force of statutory precedent. Interpretive choice presupposes both a theory of statutes’ political authority and an empirical assessment of the competence of interpreters, the benefits of rules and standards, and the interaction of lawmaking institutions. In this Article, Professor Adrian Vermeule notes that all this is widely accepted, but argues that scholarship to date has overlooked the central dilemma of interpretive choice: The empirical assessments needed to translate theories of statutes’ authority into operative doctrine frequently exceed the judiciary’s capacity. Many of the relevant questions are empirical but unanswerable, at least at acceptable cost; moreover, judges can neither conduct necessary experiments nor successfully assimilate information provided by outside institutions. Judges faced with problems of interpretive choice must therefore apply standard decisionmaking strategies of choice under irreducible empirical uncertainty, strategies derived from decision theory, rhetoric, and other disciplines. This Article applies these strategies to three standard doctrinal problems-the admissibility of legislative history, the choice of interpretive canons, and the force of statutory stare decisis. It concludes that judges should exclude legislative history, should pick between canons rather than debating their relative merits, and should observe an absolute rule of statutory stare decisis. In short, judges should embrace a formalist approach to statutory interpretation, one that uses a minimalist set of cheap and inflexible interpretive sources.

What influences the emotional responses a juror has toward a capital defendant? Do a juror’s emotions affect how she votes? The prevailing wisdom claims that several features of the capital-trial penalty phase create emotional distance between jurors and defendants, which in turn increases the likelihood of a death sentence. In this Article, Professor Garvey surveys the emotional economy of capital sentencing, examining these questions and scrutinizing the prevailing wisdom.

Congress increasingly has enacted cooperative federalism programs to achieve complex regulatory policy objectives. Such programs combine the authority of federal regulators, state regulators, and federal courts in creative and often pathmarking ways, but the failure of these actors to appreciate fully their respective roles threatens to undermine cooperative federalism’s effectiveness. In this Article, Professor Philip Weiser develops a coherent vision of how federal courts should enforce cooperative federalism regulatory programs. In particular, he relates the rise and purpose of cooperative federalism to the federal courts’ increased reluctance to make federal common law under the Erie doctrine and their greater deference to administrative agencies under the Chevron doctrine. Professor Weiser then applies this conception of cooperative federalism to the implementation of the Telecommunications Act of 1996, the most ambitious cooperative federalism venture yet, and shows how federal courts should exercise their authority in coordination with federal and state regulators to advance the Act’s goals.