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This Essay explores the shadow of administrative law. A good deal of government authority that is administrative for all intents and purposes is wielded by organizations and institutions that are not legally classified as administrative agencies. Some of these entities are private firms; some are hybrid organizations within the government. Others are traditional parts of the bureaucracy that have been deemed non-agencies for purposes of the Administrative Procedure Act ("APA"), as a matter of statutory or regulatory interpretation. Across a range of heterogenous contexts, federal courts often apply administrative law principles, derived primarily although not exclusively from the APA, as legal constraints on these actors, even though the law on its terms does not apply. Although formally outside the domain of administrative law proper, they remain covered by administrative law's shadow. The Essay assembles and analyzes some of the cases in the shadows in an attempt to clarify the judicial practice, locate it in the context of conventional debates about administrative common law, and then offer some speculation about new contexts in which judging from the shadows may emerge. [ABSTRACT FROM AUTHOR]

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. [ABSTRACT FROM PUBLISHER]

There are nearly half a million elected officials in American local governments, and the timing of local elections varies enormously even within the same state. Some local elections are held simultaneously with major federal and state races, while others are held at times when no higher level elections coincide. We analyze the effect of election timing by exploiting a 1980s change in the California Election Code, which allowed school districts to change their elections from off-cycle to on-cycle. Because we are able to observe very large within-district changes in voter turnout resulting from changes in election timing, we are able to isolate the effect of turnout on policy outcomes, including teacher salaries and student achievement tests. Our analysis demonstrates that while election timing produces dramatic changes in voter turnout, resulting changes in public policy are modest in size and not robust statistically. [ABSTRACT FROM AUTHOR]

An axiom of institutional design is known as the ally principle: all else equal, voters, legislators or other principals will rationally delegate more authority to agents who share their preferences (“allies”). The ally principle is a conventional starting point for large literatures on principal-agent relationships in economics, political science, and law. In public law, theories of delegation – from legislatures to internal committees, from legislatures to agencies and the executive, or from higher courts to lower courts – universally assume the ally principle. Yet history and institutional practice reveal many cases in which the ally principle not only fails to hold, but actually gets things backwards. We identify an enemy principle: in certain cases principals rationally delegate, not to allies, but to enemies or potential enemies — agents who do not share the principal’s preferences or whose preferences are uncertain at the time of the delegation. Our aim is to describe these cases of delegating to enemies, to explain the mechanisms on which they rest, and to offer an account of the conditions under which principals do best by following the enemy principle and reversing the ally principle. Such an account is a necessary first step towards a fully general and comprehensive theory of delegation, one that includes both the ally principle and the enemy principle as special cases.

There are nearly half a million elected officials in American local governments, and the timing of local elections varies enormously even within the same state. Some local elections are held simultaneously with major federal and state races, while others are held at times when no higher level elections coincide. We analyze the effect of election timing by exploiting a 1980s change in the California Election Code, which allowed school districts to change their elections from off-cycle to on-cycle. Because we are able to observe very large within-district changes in voter turnout resulting from changes in election timing, we are able to isolate the effect of turnout on policy outcomes, including teacher salaries and student achievement tests. Our analysis demonstrates that while election timing produces dramatic changes in voter turnout, resulting changes in public policy are modest in size and not robust statistically.

In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., the Supreme Court created a new framework for judicial deference to agency interpretations of law: courts should defer to an agency interpretation unless the relevant statute is clear or the agency interpretation is unreasonable. In the past two decades, however, the doctrinal Chevron framework has come under increasing strain. We suggest an alternative, which is to cast Chevron as a judicial voting rule, thereby institutionalizing deference to administrative agencies. Our thesis is that a voting rule of this sort would capture the benefits of the doctrinal version of Chevron while generating fewer costs. The principal advantage of institutionalizing Chevron as a voting rule is that it makes agency deference an aggregate property that arises from a set of votes, rather than an internal component of the decision rules used by individual judges. A voting-rule version of Chevron would also allow more precise calibration of the level of judicial deference over time, and holding the level of deference constant, a voting rule would produce less variance in deference across courts and over time, yielding a lower level of legal uncertainty than does the doctrinal version of Chevron. We consider and respond to various objections.

Positive political theory (PPT) is not new to administrative law, but it is increasingly becoming part of the mainstream, as evidenced by the Harvard Law Review’s publication of Professor Stephenson’s Strategic Substitution Effect (SSE). Both the normalization of PPT and the publication of SSE are good for many reasons. One important reason is that criticisms of PPT in administrative law are beginning (although just barely) to push past a standard assortment of first order critiques. Historically, PPT administrative law work was subject to three types of objections. First, models were often assailed for using an unnecessarily complex technical apparatus to demonstrate a result that many readers found trivially true. Second, other critics complained that models made assumptions that were such radical oversimplifications of reality that they could not possibly provide actual insight into the reality of law and politics. Third, many models in administrative law historically produced results that fit so poorly with the world they knew that readers were forced to conclude that the entire PPT project was altogether fruitless — a failed endeavor based on faulty premises, foolish methodology, and fantastical predictions. If SSE is any indication, we are reaching a turning point, as the Article is subject to none of these criticisms — or at least neither of the first two. The basic setup of the model is straightforward and nearly intuitive, balancing technicality with parsimony. The Article is characteristically innovative and insightful — precisely the sort of work that is rapidly becoming associated with Professor Stephenson’s ideas and methods.