Volume 33, Issue 1 (Winter 2016)
Anya Bernstein, Differentiating Deference, 33 Yale J. on Reg. 1 (2016). [PDF]
There is now some consensus that the context of a statutory term plays a crucial part in its meaning. The argument continues, however, over what “kinds of context . . . matter.” Building on scholarship that addresses the wide range of contexts that contribute to legal meaning, this Article illuminates two factors crucial to interpreting legal language: the social nature of meaning-making and the practical nature of interpretive competence. I locate my inquiry in the judicial review of agency statutory interpretation, a particularly fruitful arena for analyzing statutory interpretation more generally.
Melissa B. Jacoby, Federalism Form and Function in the Detroit Bankruptcy, 33 Yale J. on Reg. 55 (2016). [PDF]
Veronica Root, Modern-Day Monitorships, 33 Yale J. on Reg. 109 (2016). [PDF]
When a sexual abuse scandal rocked Penn State, when Apple was found to have engaged in anticompetitive behavior, and when servicers like Bank of America improperly foreclosed upon hundreds of thousands of homeowners, each organization entered into a “Modern-Day Monitorship.” Modern-day monitorships are utilized in an array of contexts to assist in widely varying remediation efforts. This is because they provide outsiders with a unique source of information about the efficacy of the tarnished organization’s efforts to resolve misconduct. Yet, despite their use in high profile and serious matters of organizational wrongdoing, they are not an outgrowth of careful study and deliberate planning. Instead, modern-day monitorships have been employed in an ad-hoc and reactionary manner, which has resulted in repeated instances of controversy and calls for reform. Underlying these calls for reform has been an implicit assumption that broad-based rules can effectively regulate all monitorships.
Yet, when tested, this assumption is found lacking. This Article traces the rise of the modern-day monitorship and, for the first time, analyzes the use of monitorships in five different contexts. The analysis demonstrates that modern-day monitorships have experienced a rapid evolution with important consequences. First, as the Apple monitorship demonstrates, this evolution has changed the manner in which courts and lawyers conceive of the appropriate boundaries and norms for court-ordered monitorships. Second, as the Penn State scandal reveals, private organizations are co-opting the use of monitorships, which may transform the nature of monitorships from a quasi-governmental enforcement mechanism to a privatized reputation remediation tool. Third, monitorships fall into different categories based on the type of remediation effort the monitorship is meant to achieve. Because these different categories necessitate different monitorship structures to achieve the goals of each monitorship, attempts to adopt universal rules governing monitorships may be misguided. In short, differences matter when evaluating monitorships.
Charles F. Sabel & William H. Simon, The Duty for Responsible Administration and the Problem of Police Accountability, 33 Yale J. on Reg. 165 (2016). [PDF]
Many contemporary civil rights claims arise from institutional activity that, while troubling, is neither malicious nor egregiously reckless. When lawmakers find themselves unable to produce substantive rules for such activity, they often turn to regulating the actors’ exercise of discretion. The consequence is an emerging duty of responsible administration that requires managers to actively assess the effects of their conduct on civil rights values and make reasonable efforts to mitigate harm to protected groups. This doctrinal evolution partially but imperfectly converges with an increasing emphasis in public administration on the need to reassess routines in the light of changing circumstances. We illustrate the doctrinal and administrative changes with a study of policing. We discuss court-supervised reforms in New York and Cincinnati as examples of contrasting trajectories that these developments can take. Both initiatives are better understood in terms of an implicit duty of responsible administration than as an expression of any particular substantive right. The Cincinnati intervention, however, reaches more deeply into core administrative practices and indeed mandates a particular crime control strategy: Problem-Oriented Policing (POP). As such, it typifies a more ambitious type of structural intervention that parallels comprehensive civil rights initiatives in other areas.
Kristen Underhill, When Extrinsic Incentives Displace Intrinsic Motivation: Designing Legal Carrots and Sticks to Confront the Challenge of Motivational Crowding-Out, 33 Yale J. on Reg. 213 (2016). [PDF]
The rise of “nudges” has inspired countless efforts to encourage individual choices that maximize personal and collective welfare, with a preference for less restrictive tools such as setting default options or reordering choice sets. As part of this trend, there has been renewed interest in the behavioral impacts of incentives — namely, rewards or penalties for shaping individual choices, including but not limited to financial incentives. Explicit incentives are pervasive in the law, including carrots offered by governments (for example, tax deductions for charitable contributions, rebates for recycling, sentence reductions for prisoners who complete drug rehabilitation programs, and incentives for criminal informants) and statutes or regulations that govern incentives offered by private parties (for example, workplace wellness programs, compensation for blood and organ donation, and pay-for-performance in executive compensation). But despite the intuitive appeal of incentives, legal commentators have expressed increasing alarm about a potential drawback: research in behavioral economics and psychology has come to show many ways in which the use of carrots and sticks may displace other motivations for good behavior, such as altruism, civic duty, or professionalism.
In legal scholarship, prevailing views of motivational crowding-out — the process by which incentives can interfere with “intrinsic” motivations for behavior — suggest that this phenomenon is an irremediable response to incentive-based policies. This Article examines a large but neglected body of empirical and theoretical literature on motivational crowding-out to show that these beliefs may be misguided. Motivational crowding-out is in fact a catch-all term for a diverse set of cognitive and behavioral processes that range from long-term changes in preferences, to the impairment of self-determination, to a complex set of signals that incentives can send to people about their abilities, social environment, values, and employers. Far from being inevitable, motivational crowding-out is responsive to changes in the way we design incentive-based policies. That is, once we understand the mechanisms of crowding-out, we can modify the incentive architecture to either minimize or amplify crowding-out effects. Remedies, however, must be tailored to the diverse causes of crowding-out, and the law has not yet recognized this problem. In light of deep anxieties about motivational crowding-out throughout the law, this Article proposes a taxonomy of crowding-out processes and introduces “incentive architecture:” the deliberate structuring of incentives to address crowding-out effects.
Daniel E. Rauch, Note, Fractional Standing, 33 Yale J. on Reg. 281 (2016). [PDF]
Generations of commentators have examined (and critiqued) standing doctrine. The fiercest clash has turned on the question of “injury” — specifically, what type of grievance is sufficient to merit court consideration. Defining “injury” is no easy task, and in recent years, substantial inquiry has focused on just what harms should qualify an individual as “injured.” Subjective fear? Lost aesthetic enjoyment? Increased risk of death? And so on.
Surely, these debates are of great importance. Yet up to this point, judges and scholars have almost all assumed an “injury binary”: either an individual has received a hurt sufficient to qualify for standing, or she has not.
This Note rejects this binary, and instead argues for a third path: “fractional injury.” A fractional injury is one that, if manifest in a lone individual, would be insufficient to grant standing. Should multiple individuals experience this injury and band together as a group to demand relief, however, then their collective grievance would be sufficient to merit standing. The upshot of this approach would be a class of injuries for which “fractional standing” — the standing of the united fractions — would be recognized.
This Note offers the first systematic exploration — and defense — of fractional standing. After briefly reviewing existing standing doctrine, the Note proceeds to illuminate the current “standing binary” and identify courts and commentators who have already gestured toward a notion of “fractional standing.” Here, I highlight several real-world cases, such as the D.C. Circuit’s prominent ruling in Natural Resources Defense Council (NRDC) v. E.P.A and the Supreme Court’s decision in Clapper v. Amnesty International.
Ultimately, though, my aim is less descriptive than normative, and so the balance of the Note argues that, irrespective of their current status, fractional injuries should be recognized going forward. Specifically, I argue that fractional standing would vindicate the core purposes of standing doctrine’s injury requirement — ensuring effective legal advocacy, dispensing constitutional justice, marshaling scarce resources, and preserving the constitutional separation powers. I also assess and respond to several important objections.
Daniel E. Rauch, Comment, Two-Track E-Commenting, 33 Yale J. on Reg. 303 (2016). [PDF]