Columbia Law Review March, 1998 267 a constitution of democratic experimentalism



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(on file with the Columbia Law Review).
[FN141]. See Livingston, supra note 125, at 575‑77.
[FN142]. See Jim Sulski, Officer, New Beat System A Good Fit, Chi. Trib., Nov. 10, 1993, § 8, at 33 (describing the then‑new program).
[FN143]. See Chicago Community Policing Evaluation Consortium, Community Policing in Chicago, Year Three (Ill. Criminal Justice Info. Auth. 1996). The detail in this section regarding community policing in Chicago is drawn from this source.
[FN144]. Reformers thought quite reasonably that officers would require persistent assignments in order first to know the problems on their watches and then to have time to implement solutions.
[FN145]. See Chicago Community Policing Evaluation Consortium, supra note 143, at 20‑23.
[FN146]. See id. at 30‑31.
[FN147]. See Wesley G. Skogan & Susan M. Hartnett, Community Policing, Chicago Style 161‑93 (1997); see also Archon Fung, Residents Can Use Police General Order to Solve Specific Neighborhood Problems, Neighborhoods, Spring 1997, at 1, 5, 9‑10.
[FN148]. See Jonathan Zeitlin, Flexibility and Mass Production at War: Aircraft Manufacture in Britain, the United States, and Germany, 1939‑1945, Tech. & Culture, Jan. 1995, at 46, 46‑49.
[FN149]. See generally Harvey M. Sapolsky, The Polaris System Development: Bureaucratic and Programmatic Success in Government (1972).
[FN150]. See id. at 61‑62.
[FN151]. See id. at 79.
[FN152]. See id. at 80.
[FN153]. See id. at 73.
[FN154]. See id. at 69.
[FN155]. See id. at 148‑52.
[FN156]. For example, in 1958, at least six organizations were concerned with developing the rocket motor for the Polaris:

Each had a viewpoint on rocket motor problems. Each was willing to evaluate the technical judgments and time estimates of its rival. And each had its own access to the program's top management. [In consequence,] the strategic decisions involved in the design of the missile and its interactions with other subsystems were the subject of a searching analysis.



Id. at 154.
[FN157]. For the history of Atlas/Titan with emphasis on the development of systems engineering, see Thomas P. Hughes, Rescuing Prometheus, ch. 3 (forthcoming 1998) (manuscript on file with the Columbia Law Review).
[FN158]. See id. at 13‑14.
[FN159]. See id. at 31‑32, 41‑42 (describing the limited experience of the airframe manufactures with electronics, warhead design, and the use of computers to solve the kinds of complex problems arising in systems integration, as well as the dominance of specialists in aerodynamics as against electrical engineers in such companies).
[FN160]. Id. at 1 (quoting Simon Ramo).
[FN161]. See id. at 46‑47.
[FN162]. Id. at 55 (quoting General Bernard Schriever, head of the Atlas/Titan program) (internal quotation marks omitted).
[FN163]. See id. at 56.
[FN164]. See generally Richard R. Nelson, Uncertainty, Learning, and the Economics of Parallel Research and Development Efforts, 43 Rev. Econ. & Stat. 351 (1961).
[FN165]. See David C. Mowery, US Post‑war Technology Policy and the Creation of New Industries, in OECD Proceedings: Creativity, Innovation and Job Creation 199 (1997). For more detail, see id. at 202‑04 (semiconductors, computer hardware and computer software), 207‑08 (biotechnology), 204‑07 (supersonic transport and light‑water reactor), 200 (statement of the general factors favoring success summarized above).
[FN166]. See Edward N. Luttwak, The Strategy of the Tank, in Strategy and Politics 295, 299‑301 (1980).
[FN167]. See Exec. Order No. 9981, 13 Fed. Reg. 4313 (1948).
[FN168]. See Mashaw, supra note 2, at 32‑37.
[FN169]. See, e.g., Chandler, supra note 72, at 482‑83 (arguing that conceptions of the modern corporation reflect organizational patterns of the U.S. firm circa 1965).
[FN170]. See Sabel, supra note 103, at 6.
[FN171]. See infra Part V.B.
[FN172]. In this context, consider, as a cynical harbinger of a new form of election fusing local and national debate, the successful use by the Democratic Party in the last presidential election of the strategy of decomposing all large symbolic issues into small and less generally suggestive projects. Since the time of Walter Lippmann, it has been axiomatic that a political party could succeed in American mass democracy only by associating its program with the symbols of the way of life the majority favors, and associating its opponents' program with symbols of what that majority rejects. The new strategy derived from the insight that such symbols come to stand for a manifold of practices with which they are only loosely associated. See Dick Morris, Behind the Oval Office: Winning the Presidency in the Nineties 218‑19 (1997). Thus, advocacy of a constitutional amendment permitting school prayer stands very generally for the conviction that moral beliefs are a public matter, but also, more particularly and loosely, for the distinct ideas that our moral responsibilities to each other may legitimately be discussed in public, that the state may foster such discussion, that religious and moral beliefs may be connected, that children, above all, should learn and partake of all this, that schools should therefore address moral concerns, and so on. Politicians who oppose a school prayer amendment on constitutional grounds can avoid the sting from this rejection of the comprehensive symbol by showing that citizens can get from government most of the particular things they associate with that idea even without the actual amendment. In the short run, as the presidential campaign of 1996 demonstrated, this leads politicians to substitute lists of many small, nearly empty promises (school children should wear uniforms to manifest their acceptance of a moral code; schools should teach respect for moral concerns and mutual responsibilities) for a few large, empty promises. But in an experimentalist setting, local government addresses just these "small" concerns in a way that establishes the accountability of those who urge them and those who must act to realize them. Under these conditions, the shift from the race to associate the opponent with a big, unpopular idea from which prior positions block all escape (the hunt for "wedge" issues), to the race to decompose the old rallying calls, can be the beginning of a new form of electoral politics.
[FN173]. See George P. Fletcher, Rethinking Criminal Law 415 (1978); Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law 27‑29 (2d ed. 1986).
[FN174]. See Patrick R. Kane, Rehabilitation‑‑The Prison System: "Warehouse Rehabilitation" Federal Bureau of Prisons, 34 How. L.J. 496, 499 (1991) (arguing for rehabilitation programs for most prisoners, while recognizing that "[f]irst, we must have security in these facilities").
[FN175]. Consider in this context a suggestion in Justice Thurgood Marshall's dissent in Dothard v. Rawlinson, in which the majority upheld an Alabama prison regulation that barred women from employment as prison guards in "'contact positions,' that is, positions requiring continual close physical proximity to inmates." 433 U.S. 321, 325 & n.6 (1977). Justice Marshall challenged the majority's assumptions about the nature and function of the job of prison guard. Initially, he invoked a benchmark from other jurisdictions: Where was Alabama's evidence that women are categorically unqualified for the position, given the "highly successful experiences of other States" described in an amicus brief of California and Washington? Id. at 341 (Marshall, J., dissenting). In addition to criticizing the majority for too readily accepting a correlation between gender and control, Justice Marshall noted that most prisoners will eventually be released, and they will be less likely to commit further acts of violence if, during their imprisonment, they have learned "to relate to women guards in a socially acceptable manner." Id. at 346 (Marshall, J., dissenting).
[FN176]. See, e.g., James E. Abbott, Educating Students for the Community of Work: Connecting with the Fourth Essence, 115 Educ. 407 (1995) (linking self‑esteem with performance and using the new private sector forms as a model).
[FN177]. See supra text accompanying notes 82‑90.
[FN178]. Consider, for example, the question of how to measure the return on the public investment in technical assistance to firms. The firms prefer to measure this return by their own estimates of potential savings since such a measure only provides information to those familiar with the options the firm really faces, that is, to those inside the firm.
[FN179]. See infra Part V.D.
[FN180]. For examples of problem‑solving public advocacy in the areas of health care and low‑wage labor markets, see Videotape: So Goes A Nation: Lawyers and Communities (Site Effects 1997) (on file with the Fordham Urban Law Journal).
[FN181]. The construction examples draw on proposed safety rules discussed at a meeting of the Steel Erection Negotiated Rulemaking Advisory Committee (SENRAC) and reported in Jody Freeman, Collaborative Governance in the Administrative State, 45 UCLA L. Rev. 1, 49‑55 (1997).
[FN182]. The condition might be thought not to hold for processes designed to separate a useful resource from a useless or inherently hazardous one, but, of course, the concepts of useful and useless themselves include potentially challengeable assumptions.
[FN183]. For arguments in support of such schemes, see J.H. Dales, Pollution, Property & Prices: An Essay in Policymaking and Economics 93‑108 (1968); Thomas H. Tietenberg, Emissions Trading 188‑215 (1985); Bruce A. Ackerman & Richard B. Stewart, Reforming Environmental Law, 37 Stan. L. Rev. 1333, 1341‑51 (1985). Although we disagree with the specific form of market‑ based alternative to regulation, we agree with Richard Stewart's more general observation:

The most promising solution to Madison's Nightmare is not indiscriminate devolution and deregulation. Neither is it a constitutional counterrevolution by the courts, nor stiffer judicial controls on administrators through administrative law. The best solution is to adopt new strategies for achieving national goals in lieu of the centralizing command and control techniques relied upon so heavily in recent decades.



Richard B. Stewart, Madison's Nightmare, 57 U. Chi. L. Rev. 335, 352 (1990). Notice, finally, that in explaining the limited diffusion of market‑ based regulation thus far, some authors note that a central barrier to its widespread use has been the organizational limitation of‑‑in our language‑‑ mass‑production firms. Thus, a shift to the form of economic organization sketched above may encourage certain forms of regulation with affinities to market‑based schemes, but not directly for the reasons normally offered by the proposals of these latter. See Robert N. Stavins & Bradley W. Whitehead, Market‑Based Environmental Policies, in Thinking Ecologically: The Next Generation of Environmental Policy 105, 111 (Marion R. Chertow & Daniel C. Esty eds., 1997). For an earlier draft of this piece that discusses the issue at greater length, see Robert N. Stavins & Bradley W. Whitehead, The Next Generation of Market‑Based Environmental Policies 17 (Aug. 15, 1996) (unpublished manuscript, on file with the Columbia Law Review). For a discussion of non‑market based alternatives, see Adam B. Jaffe et al., Environmental Regulation and the Competitiveness of U.S. Manufacturing: What Does the Evidence Tell Us?, 33 J. Econ. Literature 132, 158‑59 (1995).
[FN184]. The Clean Air Act codifies a traditional pollution credit allowance system. See 42 U.S.C. § 7503(c) (1994). For a moderately favorable assessment of this program, see Richard H. Pildes & Cass R. Sunstein, Reinventing the Regulatory State, 62 U. Chi. L. Rev. 1, 117‑20 (1995).
[FN185]. For example, in Industrial Union Department v. American Petroleum Institute, the Supreme Court invalidated a decision by the Occupational Safety and Health Administration (OSHA) to replace a ten‑part‑per‑ million benzene exposure limit with a one‑part‑per‑million exposure limit because, in the Court's view, OSHA lacked an evidentiary basis for concluding that this level of safety was reasonably necessary. 448 U.S. 607, 630‑38 (1980). Although the Court did not directly address the question of whether the technological (in)feasibility of meeting a particular standard should be a basis for adjusting an otherwise appropriate standard, that concern no doubt played a significant role in the Court's reluctance to approve what it deemed an arbitrarily chosen limit. See id. at 639‑40.
[FN186]. For an insider's ringing endorsement of many elements of the experimentalist regulatory methods in the approval of new drugs, see David A. Kessler, Remarks by the Commissioner of Food and Drugs, 51 Food & Drug L.J. 207, 209‑15 (1996) (describing the success of the FDA in self‑monitoring and comparative assessments with counterpart agencies worldwide).
[FN187]. See 9 C.F.R. pt. 417 (1997).
[FN188]. See Kessler, supra note 186, at 207.
[FN189]. See supra text accompanying notes 82‑90.
[FN190]. See Landis, supra note 26, at 9‑14.
[FN191]. See id. at 10‑13.
[FN192]. See Thomas K. McCraw, Prophets of Regulation: Charles Francis Adams, Louis D. Brandeis, James M. Landis, Alfred E. Kahn 153‑209 (1984).
[FN193]. See supra Part IV.
[FN194]. See infra Parts V.C.1‑4.
[FN195]. See National Traffic and Motor Vehicle Safety Act of 1966, Pub. L. 103‑272, § 7(b), 108 Stat. 1379, 1379‑1401 (codified as amended at 15 U.S.C. § 1381 (1994)).
[FN196]. 463 U.S. 29, 46‑57 (1983). Below we address the implications of State Farm and related cases for the role of courts in a system of democratic experimentalism. See infra Parts V.D.1‑2.
[FN197]. Jerry L. Mashaw & David L. Harfst, The Struggle for Auto Safety (1990).
[FN198]. See id. at 22‑24, 111‑13.
[FN199]. See id. at 20‑24 (defining legal culture); id. at 224‑31 (discussing implications of cultural constraints on agency performance).
[FN200]. See Occupational Safety and Health Act of 1970, Pub. L. No. 91‑596, § 2(b)(3), 84 Stat. 1590, 1590 (codified at 29 U.S.C. § 651(b)(3) (1994)) ("authorizing the Secretary of Labor to set mandatory occupational safety and health standards applicable to businesses affecting interstate commerce"). From 1970 to 1990, the Clean Air Act directed the Environmental Protection Agency to regulate statutorily specified pollutants on a pollutant‑by‑pollutant basis. See 42 U.S.C. § 7412(b)(1)(A)‑(B) (1988), amended by 42 U.S.C. § 7412(b)‑(f) (1994). For the authorization and purpose of the Consumer Product Safety Commission, see Pub. L. No. 92‑173, § 2, 86 Stat. 1207, 1207 (1972) (codified at 15 U.S.C. § 2051 (1994)).
[FN201]. For early recognition of the problem of agency capture, see Marver H. Bernstein, Regulating Business by Independent Commission 74‑95, 169‑71 (1955); Samuel P. Huntington, The Marasmus of the ICC: The Commission, the Railroads, and the Public Interest, 61 Yale L.J. 467, 481‑505 (1952) (documenting railroad capture of the ICC).
[FN202]. See Mashaw & Harfst, supra note 197, at 4‑5.
[FN203]. See id. at 3.
[FN204]. See id.
[FN205]. See id. at 2‑4, 65‑67.
[FN206]. See id. at 85.
[FN207]. See id. at 74‑77.
[FN208]. See 472 F.2d 659, 671‑73 (6th Cir. 1972).
[FN209]. See id. at 675‑78.
[FN210]. See id.
[FN211]. See Mashaw & Harfst, supra note 197, at 90.
[FN212]. See id. at 91.
[FN213]. See, e.g., Paccar, Inc. v. NHTSA, 573 F.2d 632, 644‑45 (9th Cir. 1978) (invalidating index of road slickness because court found unsatisfactory an agency proposal for compensatory adjustments in test procedures to account for variations over time of given road surfaces); see also Mashaw & Harfst, supra note 197, at 100‑01 (discussing the Paccar case).
[FN214]. See Mashaw & Harfst, supra note 197, at 92‑103.
[FN215]. See id. at 38, 52, 215‑16.
[FN216]. See id. at 134‑35.
[FN217]. See id. at 131‑33.
[FN218]. See id. at 139.
[FN219]. See id. at 139‑40.
[FN220]. See Motor Vehicle and Schoolbus Safety Amendments of 1974, Pub. L. No. 93‑492, § 109, 88 Stat. 1470, 1482‑84 (repealed 1994).
[FN221]. See Mashaw & Harfst, supra note 197, at 109.
[FN222]. See id. at 185.
[FN223]. See id. at 189.
[FN224]. See id. at 113‑15.
[FN225]. See id. at 151‑56.
[FN226]. See id. at 167‑71.
[FN227]. See Federal Motor Vehicles Safety Standards; Occupant Crash Protection, 46 Fed. Reg. 53,419 (1981) (codified at 49 C.F.R. pt. 571.208); Mashaw & Harfst, supra note 197, at 209.
[FN228]. See Mashaw & Harfst, supra note 197, at 209.
[FN229]. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 48‑49 (1983).
[FN230]. See Pub. L. No. 102‑240, § 2508(a)(2), 105 Stat. 1914, 2085 (1991) (codified at 49 U.S.C. § 30127(c)(1) (1994)).
[FN231]. See Federal Motor Vehicle Safety Standards, 62 Fed. Reg. 12,960 (1997) (to be codified at 49 C.F.R. pt. 571).
[FN232]. See Mashaw & Harfst, supra note 197, at 206, 250‑51.
[FN233]. See id. at 92.
[FN234]. See id. at 206.
[FN235]. See id. at 251.
[FN236]. Id.
[FN237]. See id. at 162.
[FN238]. See Mashaw, supra note 2, at 164‑80; Paul Verkuil, Judicial Review of Informal Rulemaking, 60 Va. L. Rev. 185, 205 (1974).
[FN239]. See generally Mashaw & Harfst, supra note 197.
[FN240]. See supra Part II.
[FN241]. See Herbert Kaufman, The Forest Ranger: A Study in Administrative Behavior, at xiv (1960).
[FN242]. See id. at 26‑27.
[FN243]. See id. at 29‑33.
[FN244]. See id. at 38.
[FN245]. See U.S. GAO, GAO/RCED‑97‑71, Report to Congressional Requesters, Forest Service Decision‑Making: A Framework for Improving Performance 4 (1997) [hereinafter Forest Service Decision‑Making].
[FN246]. See id. at 20‑23.
[FN247]. See id. at 25.
[FN248]. See Kaufman, supra note 241, at 208.
[FN249]. See id. at 45‑47.
[FN250]. See Gifford Pinchot, Breaking New Ground 161‑70 (Island Press 1987) (1947).
[FN251]. Kaufman, supra note 241, at 84.
[FN252]. See id. at 91‑107, 194‑95.
[FN253]. See id. at 95.
[FN254]. See id. at 95‑102.
[FN255]. See id. at 99. Note, however, that only fire and timber plans were required of each district. Some districts had plans for other policies mentioned.
[FN256]. See id. at 99‑101, 203‑04.
[FN257]. See id. at 102‑03.
[FN258]. See id. at 137‑41.
[FN259]. See id. at 130‑34, 140.
[FN260]. See id. at 155‑58, 161‑200.
[FN261]. Id. at 192.
[FN262]. See id.
[FN263]. See id. at 189.
[FN264]. Id. at 192.

It would be an exaggeration to say that the Rangers are consulted about every decision affecting the management of their districts, but there can be no question that consultation on many matters of concern to them is common enough to lend credibility to the impression that the Rangers participate actively in the formation of administrative policy for national forest administration.



Id. at 189.
[FN265]. See id. at 95.
[FN266]. See id. at 144‑45.
[FN267]. Id. at 216.
[FN268]. Id. at 142‑43 n.7 (quoting Letter from the Chief of the Service to the Regional Forester of Region 2 (Feb. 21, 1955)). A regional regulation defined the purposes of inspection as 90% training, 5% fact‑finding, and 5% reporting and recording. See id.
[FN269]. Id. at 145.
[FN270]. See id. at 130‑34.
[FN271]. "It is ... difficult," one General Integrating Inspector admonished a District Ranger, "to tell from diaries and other records who is Fire Boss on individual fires. I wonder if the same difficulty is present among your men actually on fires?" Id. at 145.
[FN272]. See, e.g., id. at 148 ("W‑‑is very interested in work planning and has done a good job of making this style of planning into a useful tool to help him administer the district. The monthly plans were followed reasonably well and accomplishments are satisfactory.").
[FN273]. See id. at 176‑83.
[FN274]. Forest Service Decision‑Making, supra note 245, at 4.
[FN275]. See Paul Roberts, The Federal Chain‑Saw Massacre: Clinton's Forest Service and Clear‑Cut Corruption, Harper's, June 1997, at 37, 41.
[FN276]. Pub. L. No. 91‑190, 83 Stat. 852 (1970) (codified as amended at 42 U.S.C. §§ 4321, 4331‑4335, 4341‑4347 (1994)).
[FN277]. Pub. L. No. 93‑205, 87 Stat. 884 (1973) (codified as amended in scattered sections of 16 U.S.C.).
[FN278]. Pub. L. No. 84‑159, ch. 360, 69 Stat. 322 (1955) (codified as amended at 42 U.S.C. §§ 7401‑7671 (1994)).
[FN279]. Pub. L. No. 80‑845, ch. 758, 62 Stat. 1155 (1948) (codified as amended in scattered sections of 33 U.S.C.).
[FN280]. Pub. L. No. 88‑577, 78 Stat. 890 (1964) (codified as amended at 16 U.S.C. §§ 1131‑1136 (1994)).
[FN281]. See Letter from Mike Dombeck, Forest Service Chief, to General Accounting Office (Apr. 21, 1997), in Forest Service Decision‑Making, supra note 245, at 130.
[FN282]. See Forest Service Decision‑Making, supra note 245, at 64.
[FN283]. See Bradley Karkkainen, Biodiversity and Land, 83 Cornell L. Rev. 1, 43 & n.235, 76 (1997).
[FN284]. See Forest Service Decision‑Making, supra note 245, at 75‑76.
[FN285]. See id. at 23.
[FN286]. See id. at 84‑87.
[FN287]. Id. at 28.
[FN288]. See id. at 20.
[FN289]. Id. at 12.
[FN290]. See Roberts, supra note 275, at 38. The G.A.O. confirms the emphasis on timber use. See Forest Service Decision‑Making, supra note 245, at 53‑56, 64.
[FN291]. See James A. Morone, The Democratic Wish: Popular Participation and the Limits of American Government 115‑23 (rev. ed. 1998).
[FN292]. See Samuel P. Hays, Conservation and the Gospel of Efficiency: The Progressive Conservation Movement, 1890‑1920, at 66‑90 (1959).
[FN293]. See id. at 72.
[FN294]. Pinchot himself was forced from office by President Taft. See George E. Mowry, The Era of Theodore Roosevelt 254 (1958).
[FN295]. See Joseph V. Rees, Hostages of Each Other: The Transformation of Nuclear Safety Since Three Mile Island 1 (1994).
[FN296]. Id. at 195 n.39.
[FN297]. See id. at 38‑40, 195 n.39.
[FN298]. See id. at 91.
[FN299]. See id. at 107‑09.
[FN300]. See id. at 75‑87.
[FN301]. See id. at 126‑27.
[FN302]. Id. at 126‑27.
[FN303]. See id. at 127‑28.
[FN304]. See id. at 128‑29.
[FN305]. See id. at 137‑38.
[FN306]. See id. at 141.
[FN307]. See id. at 54.
[FN308]. Id. at 141 (quoting INPO inspector).
[FN309]. Id. at 144, 147.
[FN310]. See id. at 98‑99.
[FN311]. See id. at 104‑06.
[FN312]. See id. at 128.
[FN313]. In 1991, for instance, one in seven staff members were on loan (for up to two years) from nuclear power facilities. See id. at 57.
[FN314]. See id. at 195 n.39.
[FN315]. See id. at 183.
[FN316]. See Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 880 (D.C. Cir. 1992) (en banc) (holding that commercial character of information voluntarily submitted to government exempts INPO reports from requirements of Freedom of Information Act, 5 U.S.C. § 552(b)(4)(1994)).
[FN317]. See Matthew Freedman & Jim Riccio, What the Nuclear Regulatory Commission Won't Tell You: Aging Reactors. Poorly Trained Workers, Pub. Citizen, Jan.‑Feb. 1994, at 10, 10‑11 (also available at
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