Against flexibility

Cornell Law Review

Volumn 96, Issue 6, 2011, Pages 1375-1468

  Super, David A ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

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EID: 80051487432     PISSN: 00108847     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (413)

1. The rule against perpetuities is the "common-law rule prohibiting a grant of an estate unless the interest must vest, if at all, no later than 21 years (plus a period of gestation to cover posthumous birth) after the death of some person alive when the interest was created." BLACK'S LAW DICTIONARY 1447 (9th ed. 2009).
2. See, e.g., District of Columbia v. Heller, 554 U. S. 570, 634-35 (2008) ("Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.").
3. See, e.g., JAMES WILLARD HURST, LAW AND THE CONDITIONS OF FREEDOM IN THE NINETEENTH-CENTURY UNITED STATES 10-18 (1956) ("[I]t does not exaggerate the role of law to see that its procedures and compulsions were inextricably involved in the growth of our market economy. By providing authoritative forms of dealing and by enforcing valid agreements, we loaned the organized force of the community to private planners.").
4. Compare FRANZ NEUMANN, THE RULE OF LAW: POLITICAL THEORY AND THE LEGAL SYSTEM IN MODERN SOCIETY 212 (1986) (arguing that exercising discretion across a broad range of subjects, rather than with particular events in mind, is essential for maintaining personal freedom)
5. and E. P. THOMPSON, WHIGS AND HUNTERS: THE ORIGIN OF THE BLACK ACT 266 (1975) (finding the rule of law an unqualified good)
6. with JOSEPH RAZ, THE AUTHORITY OF LAW: ESSAYS ON LAW AND MORALITY 224 (1979) (rejecting this view by asserting that "the rule of law is a negative virtue in two senses: conformity to it does not cause good except through avoiding evil and the evil which is avoided is evil which could only have been caused by the law itself").
7. Thus, for example, Roger Sherman condemned specific instructions from constituents for interfering with the "duty of a good representative to inquire what measures are most likely to promote the general welfare." 1 ANNALS OF CONG. 764 (Joseph Gales ed., 1834);
8. cf. Mark A. Graber, Enumeration and Other Constitutional Strategies for Protecting Rights: The View from 1787/1791, 9 U. PA. J. CONST. L. 357, 371 (2007) ("Conceptualizing tyranny as a rule dedicated to private interests, members of the framing generation believed that the people's representatives could waive the fundamental rights of their constituents when doing so promoted social ends.").
9. See A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495, 537-38 (1935) ("Congress cannot delegate legislative power to the President to exercise an unfettered discretion to make whatever laws he thinks may be needed or advisable for the rehabilitation and expansion of trade or industry.").
10. See, e.g., Kolender v. Lawson, 461 U. S. 352, 357 (1983) ("[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited....");
11. Lanzetta v. New Jersey, 306 U. S. 451, 458 (1939) ("The challenged provision condemns no act or omission; the terms it employs to indicate what it purports to denounce are so vague, indefinite and uncertain that it must be condemned as repugnant to the due process clause of the Fourteenth Amendment.").
12. See, e.g., Heckler v. Campbell, 461 U. S. 458, 466-67 (1983) (allowing the Social Security Administration to issue rules foreclosing issues that claimants for disability benefits might otherwise raise in adjudications);
13. United States v. Fla. E. Coast Ry. Co., 410 U. S. 224, 243-46 (1973) (deferring to agency's choice to proceed by rulemaking rather than by adjudication absent evidence that it had singled out particular entities);
14. SEC v. Chenery Corp., 332 U. S. 194, 201-02 (1947) (refusing to "stultify the administrative process" by requiring agencies to proceed by rule).
15. See JOHN RAWLS, A THEORY OF JUSTICE 136-37 (1971) (advocating decision making behind a "veil of ignorance" in order to "nullify the effects of specific contingencies which put men at odds and tempt them to exploit social and natural circumstances to their own advantage" by forcing them "to evaluate principles solely on the basis of general considerations").
16. See, e.g., West v. Conrail, 481 U. S. 35, 36-39 (1987) (determining which acts must occur before expiration of the statute of limitations);
17. Goldberg v. Kelly, 397 U. S. 254, 260-72 (1970) (requiring that hearings be held prior to termination of welfare benefits);
18. Vélez v. Awning Windows, Inc., 375 F.3d 35, 43-44 (1st Cir. 2004) (enforcing scheduling order of the district court);
19. TODD D. RAKOFF, A TIME FOR EVERY PURPOSE: LAW AND THE BALANCE OF LIFE viii (2002) (exploring "how our society shapes its use of time, and [how] the particular laws... participate in that shaping").
20. Professor Louis Kaplow asks many of the same questions this Article does. See Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 DUKE L. J. 557 (1992). He fails, however, to differentiate between changes in the timing of decisions and the delegation of those decisions from legislative to enforcement authorities.
21. See, e.g., id. at 562-64; see also HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW 145-58 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994);
22. H. L. A. Hart, THE CONCEPT OF LAW 125-29 (2d ed. 1994).
23. See Jacob E. Gersen & Eric A. Posner, Timing Rules and Legal Institutions, 121 HARV. L. REV. 543, 545 (2007) (explaining that "because a panoply of constitutional, statutory, and internal congressional rules constrain the timing of legislative action,... 'mere' timing... can mean nearly everything"
24. (quoting Aaron-Andrew P. Bruhl, Using Statutes to Set Legislative Rules: Entrenchment, Separation of Powers, and the Rules of Proceedings Clause, 19 J. L. & POL. 345, 398 (2003))).
25. See, e.g., Alfred C. Aman, Jr., Administrative Law in a Global Era: Progress, Deregulatory Change, and the Rise of the Administrative Presidency, 73 CORNELL L. REV. 1101, 1244 (1988) (discussing the "enormous need to coordinate and control the[] vast policy making powers" of agencies by limiting policy decisions to "an elected branch of government-the President");
26. Hannah Wiseman, Public Communities, Private Rules, 98 GEO. L. J. 697, 763-66 (2010) (finding delegation of rule-making power to sublocal entities appealing because it enhances flexibility).
27. See Kaplow, supra note 11, at 561 n. 6 ("[A] particular law will have qualities of rules and of standards, with competing formulations differing in the degree to which they are rule-or standard-like."); Fred C. Zacharias, Specificity in Professional Responsibility Codes: Theory, Practice, and the Paradigm of Prosecutorial Ethics, 69 NOTRE DAME L. REV. 223, 244 (1993) (suggesting that rules and standards lie on a "specificity continuum" where "[t]he extremes of the spectrum are easy to identify, while the middle ranges blur at the margins").
28. Maurice Rosenberg, Judicial Discretion of the Trial Court, Viewed from Above, 22 SYRACUSE L. REV. 635, 637 (1971).
29. See RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 31-33 (1977).
30. Cf. George C. Christie, An Essay on Discretion, 1986 DUKE L. J. 747, 749-50 (acknowledging that secondary discretion may be thought to merge, in practice, with primary discretion when a subordinate "is given the authority to make wrong choices that cannot be overturned").
31. The Administrative Procedure Act, 5 U. S. C. § 553 (b) - (c) (2006), for example, outlines the three stages of the notice-and-comment rule-making process.
32. See 29 U. S. C. § 655. The Occupational Safety and Health Act requires employers to "furnish to each of [their] employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to [their] employees, "
33. See Am. Textile Mfrs. Inst., Inc. v. Donovan, 452 U. S. 490, 536-41 (1981).
34. See Dan M. Kahan, Reciprocity, Collective Action, and Community Policing, 90 CALIF. L. REV. 1513, 1527-30, 1538-39 (2002).
35. See Williams v. Walker-Thomas Furniture Co., 350 F.2d 445, 448-49 (D. C. Cir. 1965) (affirming judicial power to refuse to enforce an unconscionable contract).
36. Cf. NELSON W. POLSBY, HOW CONGRESS EVOLVES: SOCIAL BASES OF INSTITUTIONAL CHANGE 145-47 (2004) (describing this phenomenon in the congressional setting as being consistent with the Framers' preference for and design of a limited federal government).
37. See, e.g., Heckler v. Campbell, 461 U. S. 458, 465-67 (1983) (allowing the Social Security Administration to specify levels of impairment necessary to qualify for Social Security disability benefits);
38. Mathews v. Eldridge, 424 U. S. 319, 334-35 (1976) (establishing a three-part balancing test for lower courts to apply when assessing whether an agency has provided sufficient procedural due process).
39. See, e.g., David H. Gans, Strategic Facial Challenges, 85 B. U. L. REV. 1333, 1371 (2005);
40. Kevin M. Stack, The President's Statutory Powers to Administer the Laws, 106 COLUM. L. REV. 263, 270-76 (2006).
41. Under the Supreme Court's interpretation, Congress must provide at least an initial "intelligible principle" to administrative agencies prior to delegating to them any decision-making power. FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 156-59 (2000) (finding Congress did not authorize the FDA to regulate tobacco products);
42. see also J. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394, 409 (1928).
43. See Hampton, 276 U. S. at 409 (upholding the Tariff Act of 1922 because the vague instructions it gave to the President and the Tariff Commission on tariff adjustments satisfied the "intelligible principle" requirement);
44. see also Yakus v. United States, 321 U. S. 414, 425-26 (1944) ("Congress is not confined to that method of executing its policy which involves the least possible delegation of discretion to administrative officers.").
45. See, e.g., Boreali v. Axelrod, 517 N. E.2d 1350, 1351 (N. Y. 1987) (striking down tobacco regulation by the public health department as lacking sufficient normative guidance from the legislature);
46. Thygesen v. Callahan, 385 N. E.2d 699, 702 (Ill. 1979) (striking down regulation of check-cashing fees because the legislature failed to specify sufficient norms to guide an agency's exercise of quantitative discretion and instead instructed the agency only to be "reasonable" in exercising its discretion).
47. See generally Frederick Schauer, Exceptions, 58 U. CHI. L. REV. 871 (1991) (discussing the extent to which exceptions can deprive rules of much of their value).
48. See Hill v. Gateway 2000, Inc., 105 F.3d 1147, 1151 (7th Cir. 1997) (enforcing an arbitration clause contained with a product in a sealed box).
49. Cf. Kristina Daugirdas, Note, Evaluating Remand Without Vacatur: A New Judicial Remedy for Defective Agency Rulemakings, 80 N. Y. U. L. REV. 278, 285-86 (2005) (discussing the factors that courts consider to determine the remedy when striking down an existing administrative regime).
50. See, e.g., Heimberger v. Sch. Dist. of Saginaw, 881 F.2d 242, 245-46 (6th Cir. 1989) (finding plaintiff parents lacked standing to challenge concededly unlawful school policies because the relief they sought would "actually exacerbate[] rather than relieve[] the alleged injury" by allowing defendant school district to impose a harsher, yet legal, policy should plaintiffs prevail).
51. See, e.g., Jefferson v. Hackney, 406 U. S. 535, 536 (1972) (affirming the validity of Texas's computation procedures that resulted in predominantly white categories of welfare recipients receiving higher benefit payments than those received by categories of welfare recipients composed primarily of racial minorities);
52. Lindsey v. Normet, 405 U. S. 56, 69 (1972) (rejecting a muddled attack on Oregon's landlord-tenant law).
53. See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U. S. 1, 40-44 (1973) (noting the difficulty of determining the degree to which each school district might be disadvantaged by disparate property tax bases);
54. Dandridge v. Williams, 397 U. S. 471, 485-87 (1970) (refusing to strike down a cap on the level of welfare benefits a family could receive and noting the absence of a coherent, judicially administrable principle on which an increment for larger families could be determined).
55. See Helen Hershkoff, Positive Rights and State Constitutions: The Limits of Federal Rationality Review, 112 HARV. L. REV. 1131, 1144-53, 1168-83 (1999) (discussing expanded state court enforcement of individual rights);
56. see also, e.g., In re Extension of Boundaries of Hattiesburg, 840 So. 2d 69, 81-83, 98 (Miss. 2003) (upholding a broad, subjective judicial role in setting municipal boundaries).
57. See Checkosky v. SEC, 23 F.3d 452, 465 (D. C. Cir. 1994) (documenting the prevalence of the practice of remanding without vacatur and recognizing the court's "remedial discretion not to vacate").
58. RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 6.8, at 497-99 (5th ed. 2010).
59. See Alfred C. Aman, Jr., Administrative Equity: An Analysis of Exceptions to Administrative Rules, 1982 DUKE L. J. 277, 285 (recognizing that such discretionary exercises have been subject to attack for "appear[ing] unreasonable when applied to one or a few");
60. Peter H. Schuck, When the Exception Becomes the Rule: Regulatory Equity and the Formulation of Energy Policy Through an Exceptions Process, 1984 DUKE L. J. 163, 293 (describing the "unpredictable and unprincipled" nature of such a discretionary approach).
61. This sequence is sometimes reversed in practice: having enacted a sweeping statute or regulation, either Congress or an agency may have second thoughts and establish an exceptions procedure. See, e.g., Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, § 850, 110 Stat. 2105, 2336-37
62. (expanding the USDA's authority to abrogate the rules Congress included in the Food Stamp Act of 1977, Pub. L. No. 95-113, 91 Stat. 913-1045). This reclamation of discretion dissipates to some extent the decisional resources that the original statute saved but nonetheless is superior to abrogating the underlying rule completely.
63. See, e.g., David S. Law & David Zaring, Law Versus Ideology: The Supreme Court and the Use of Legislative History, 51 WM. & MARY L. REV. 1653, 1701 (2010).
64. See 401 U. S. 402, 406, 408-09 (1971).
65. 467 U. S. 837 (1984).
66. Under Skidmore deference, if congressional ambiguity exists, courts give less deference to agency action than under Chevron; rather than applying a lenient "reasonableness" test, Skidmore instructs courts to grant agency decisions only persuasive weight in a multifactor analysis. See Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944) ("We consider that the rulings, interpretations and opinions of the [agency], while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.").
67. E.g., Conn. State Med. Soc'y v. Conn. Bd. of Exam'rs in Podiatry, 546 A.2d 830, 834 (Conn. 1988) (finding that an administrative construction of a statute was not entitled to special deference because the statute in question had never been "subjected to judicial scrutiny or time-tested agency interpretations").
68. See 5 U. S. C. §§ 553-554;
69. United States v. Mead Corp., 533 U. S. 218, 229-34 (2001) (holding that customs classification rulings are not entitled to Chevron deference because they neither result from the APA's notice-and-comment procedure nor carry the force of law).
70. 317 U. S. 111, 128-29 (1942) (interpreting Congress's powers under the Commerce Clause expansively).
71. See Terrance Sandalow, The Limits of Municipal Power Under Home Rule: A Role for the Courts, 48 MINN. L. REV. 643, 643 (1964) (arguing that home rule provisions should provide broad authority to legislate on a local level, subject to judicial protection of interests).
72. Dillon's Rule provides that states' grants of authority to municipalities should be strictly construed both as to the ends localities may pursue and the means by which they may pursue expressly authorized ends. See GERALD E. FRUG, CITY MAKING: BUILDING COMMUNITIES WITHOUT BUILDING WALLS 45-50 (1999).
73. 397 U. S. 471, 485 (1970) (applying the same constitutional standard to a case involving administration of public welfare as was applied in cases involving state regulation of business and industry, finding that despite the drastic factual differences, there existed "no basis for applying... different constitutional standard[s]").
74. 295 U. S. 602, 613-14 (1935) (upholding statutory limits on the President's authority to dismiss appointees to the Federal Trade Commission).
75. 426 U. S. 229, 242 (1976) (finding that an invidious discriminatory purpose in violation of the Fourteenth Amendment can be inferred from the totality of the circumstances).
76. 478 U. S. 833, 847-58 (1986) (finding that an administrative tribunal deciding a contract-based counterclaim to a claim filed under its rules is not usurping the functions of courts).
77. See Ferguson v. Skrupa, 372 U. S. 726, 731-33 (1963) (articulating a general presumption of constitutionality and clearly distinguishing rational basis review from more exacting levels of constitutional scrutiny).
78. 5 U. S. C. § 706 (2) (A) (2006).
79. See, e.g., Webster v. Doe, 486 U. S. 592, 599 (1988)
80. (finding that 5 U. S. C. § 702 (a) (2) applies where statutes are so broadly written that they provide "no law to apply" to a given case
81. (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 410 (1971))).
82. See, e.g., Gonzaga Univ. v. Doe, 536 U. S. 273, 283-86 (2002) (denying private enforceability to a statute securing the privacy of students' records).
83. See, e.g., Pennhurst State Sch. & Hosp. v. Halderman, 451 U. S. 1, 22 (1981) (holding that a statute expressly focused on improving care to the mentally disabled through improved organization of state services did not "requir[e] the States to fund newly declared individual rights").
84. See Harper v. Va. Dep't of Taxation, 509 U. S. 86, 94 (1993) (reaffirming the retrospective effect of the Supreme Court's constitutional holdings).
85. But see Roger J. Traynor, Quo Vadis, Prospective Overruling: A Question of Judicial Responsibility, 28 HASTINGS L. J. 533, 535 (1977) (suggesting exceptions to this rule).
86. See Heckler v. Campbell, 461 U. S. 458, 467-68 (1983): [While] the statutory scheme contemplates that disability hearings will be individualized determinations based on evidence[,]... this does not bar the Secretary from relying on rulemaking to resolve certain classes of issues.... [The relevant determination] requires the Secretary to determine a[] [factual] issue that is not unique to each claimant... [and] may be resolved as fairly through rulemaking as by introducing... testimony... at each... hearing.... To require the Secretary to relitigate... at each hearing would hinder needlessly an already overburdened agency.
87. Cf. Atkins v. Parker, 472 U. S. 115, 126 (1985) (holding that a change to food stamps regulations, because it constituted a "mass change" rather than "individual adverse action", did not require "individual computations" to satisfy due process requirements).
88. See, e.g., SEC v. Chenery Corp., 318 U. S. 80, 87-90 (1943) (rejecting the agency's assertion that prior judicial decisions had established a firm equitable standard that bound it and requiring new procedures to consider that question).
89. See, e.g., Hampton v. Mow Sun Wong, 426 U. S. 88, 105 (1976): We may assume... that if the Congress or the President had expressly imposed the citizenship requirement, it would be justified by the national interest...; but we are not willing to presume that the Chairman of the Civil Service Commission... was deliberately fostering an interest so far removed from his normal responsibilities. Consequently, before evaluating the... asserted justification for the rule, it is important to know whether we are reviewing a policy decision made by Congress and the President or a question of personnel administration determined by the Civil Service Commission.
90. See also Kent v. Dulles, 357 U. S. 116, 129 (1958) (holding that because the "right of exit" is a liberty protected by the Fifth Amendment, any regulation of that liberty must be pursuant either to congressional action or to congressional delegation, neither of which, in this case, existed to authorize the Secretary of State to withhold passports from U. S. citizens with communist ties).
91. See United States v. Morgan, 313 U. S. 409, 422 (1941) ("[I]t was not the function of the court to probe the mental processes of the Secretary.").
92. 524 U. S. 417, 444 (1998) ("[W]henever the President cancels an item of new direct spending or a limited tax benefit [by employing the line-item veto] he is rejecting the policy judgment made by Congress and relying on his own policy judgment.").
93. FED. R. EVID. 807.
94. See United States v. Tome, 61 F.3d 1446, 1452 (10th Cir. 1995) ("[A]n expansive interpretation of the residual exception... threaten[s] to swallow the entirety of the hearsay rule.").
95. See generally Randolph N. Jonakait, The Subversion of the Hearsay Rule: The Residual Hearsay Exceptions, Circumstantial Guarantees of Trustworthiness, and Grand Jury Testimony, 36 CASE W. RES. L. REV. 431 (1986) (criticizing expansions of the residual exception).
96. See, e.g., Lassiter v. Dep't of Soc. Servs., 452 U. S. 18, 31 (1981) (declining to require appointive counsel for all defendants in actions to terminate parental rights on the condition that counsel be provided in exceptional cases);
97. Vill. of Euclid v. Ambler Realty Co., 272 U. S. 365 (1926) (upholding zoning in general so long as exceptions are available to remedy extreme hardships).
98. See PETER H. SCHUCK, THE LIMITS OF LAW: ESSAYS ON DEMOCRATIC GOVERNANCE 158-59 (2000).
99. See Jerry L. Mashaw, The Supreme Court's Due Process Calculus for Administrative Adjudication in Mathews v. Eldridge: Three Factors in Search of a Theory of Value, 44 U. CHI. L. REV. 28, 28-30, 57-59 (1976).
100. See Michael B. Katz, The Price of Citizenship: Redefining the American Welfare State 90-92, 328-40 (2001) ("With encouragement from the federal government, in the late 1980s state governments began to use waivers as vehicles for welfare reform.").
101. See, e.g., People v. Kail, 501 N. E.2d 979, 981 (Ill. App. Ct. 1986) ("Claims of selective enforcement of the laws are appropriately judged according 'to ordinary equal protection standards.'"
102. (quoting Wayte v. United States, 470 U. S. 598, 608 (1985))).
103. Cf. Geoffrey C. Hazard, Jr., Criminal Justice System: Overview, in 2 ENCYCL. OF CRIME AND JUSTICE 450, 455, 460 (Sanford H. Kadish ed., 1983) (discussing the discretion and relative autonomy with which police officers and prosecutors operate, as well as the factors that often go into the decision to prosecute or not).
104. See generally U. S. GEN. ACCOUNTING OFFICE, REPORT TO SENATE AND HOUSE COMMS. ON THE JUDICIARY, DEATH PENALTY SENTENCING: RESEARCH INDICATES PATTERN OF RACIAL DISPARITIES 5 (1990) ("In 82 percent of the studies, race of victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e., those who murdered whites were found to be more likely to be sentenced to death than those who murdered blacks.").
105. See N. Am. Cold Storage Co. v. City of Chicago, 211 U. S. 306, 320 (1908) (upholding seizure and destruction of putrid poultry without a prior hearing to protect the public health).
106. See Fuentes v. Shevin, 407 U. S. 67, 96 (1972) ("[P]rejudgment replevin provisions work a deprivation of property without due process of law insofar as they deny the right to a prior opportunity to be heard before chattels are taken from their possessor.").
107. See, e.g., MICH. COMP. LAWS § 600. 5714 (2009, supp. 2010) (providing for summary proceedings to recover possession from tenants under certain circumstances).
108. See, e.g., LARRY ALEXANDER & EMILY SHERWIN, THE RULE OF RULES: MORALITY, RULES, AND THE DILEMMAS OF LAW 30 (2001) (contending that the "quality of determinateness" distinguishes rules from standards);
109. FREDERICK SCHAUER, PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF RULE-BASED DECISION-MAKING IN LAW AND IN LIFE 104 (1991) (arguing that it is a mistake to distinguish rules from standards solely on the basis of "the dimension of specificity");
110. Colin S. Diver, The Optimal Precision of Administrative Rules, 93 YALE L. J. 65, 66 (1983) (aiming to develop a "standard for standards");
111. See, e.g., Debra Livingston, Police Discretion and the Quality of Life in Public Places: Courts, Communities, and the New Policing, 97 COLUM. L. REV. 551, 573-78, 653-72 (1997) (assuming that judicial interevention and political mechanisms are the only options for limiting discretion in community-and problem-oriented policing).
112. See, e.g., Lisa A. Gennetian et al., Regional Differences in the Effects of Welfare Reform: Evidence from an Experimental Program in Rural and Urban Minnesota, 13 GEO. J. ON POVERTY L. & POL'Y 119, 120-21, 149-50 (2006);
113. David A. Super, Offering an Invisible Hand: The Rise of the Personal Choice Model for Rationing Public Benefits, 113 YALE L. J. 815, 825-36 (2004) (describing how public benefit programs seek to influence eligible low-income people's behavior);
114. W. Kip Viscusi, Toward a Diminished Role for Tort Liability: Social Insurance, Government Regulation, and Contemporary Risks to Health and Safety, 6 YALE J. ON REG. 65, 65-67 (1989).
115. See, e.g., Edward L. Rubin, Due Process and the Administrative State, 72 CALIF. L. REV. 1044, 1143 (1984) ("[C]ost operates as a pragmatic constraint; it only comes into play after we have decided what we want or need.").
116. See, e.g., LeRoy Paddock, An Integrated Approach to Nanotechnology Governance, 28 UCLA J. ENVTL. L. & POL'Y 251, 252-53, 270-73 (2010) (discussing the information requirements necessary for environmental and public health governance systems and noting that "[t]he information needed to make adaptive regulatory decisions for most nanotechnologies is not readily available").
117. Mullane v. Cent. Hanover Bank & Trust Co., 339 U. S. 306, 314 (1950).
118. Compare Goldberg v. Kelly, 397 U. S. 254, 262-64 (1970) (assuring recipients the right to present information before the state terminates welfare benefits)
119. with Atkins v. Parker, 472 U. S. 115, 128-30 (1985) (denying the right to a hearing when no new information is likely to be in dispute).
120. Cf. RICHARD G. LIPSEY & K. ALEC CHRYSTAL, ECONOMICS 158 (10th ed. 2004) (explaining that efficient market models are built on a number of assumptions, one of them being that buyers of the product are well informed about the product's characteristics).
121. See R. H. COASE, THE FIRM, THE MARKET, AND THE LAW 33-55 (1988).
122. BARRY SCHWARTZ, THE PARADOX OF CHOICE: WHY MORE IS LESS 23 (2004) (noting that individuals must "filter[] out extraneous information" because otherwise, "[i]f everything available to our senses demanded our attention at all times, we wouldn't be able to get through the day").
123. See OLIVER WENDELL HOLMES, JR., THE COMMON LAW 203 (Am. Bar Assoc. ed. 2009) (1881) (acknowledging the human tendency of contemplating the performance, rather than the breach, of a contract upon entering it).
124. See Nat'l Petroleum Refiners Ass'n v. FTC, 482 F.2d 672, 678 (D. C. Cir. 1973) (finding rule making so sufficiently desirable that courts may infer from ambiguous statutes that agencies have rule-making power).
125. Cf. KENNETH CULP DAVIS, DISCRETIONARY JUSTICE: A PRELIMINARY INQUIRY 216 (1969) (noting that formal hearings and judicial review do not cure discretionary injustices).
126. See, e.g., FTC v. Standard Oil Co., 449 U. S. 232, 246-47 & n. 14 (1980) (acknowledging that defending a price-fixing investigation would come at great expense to respondent, but declining to permit judicial intervention before a final order).
127. See Ruth Gavison, Comment, Legal Theory and the Role of Rules, 14 HARV. J. L. & PUB. POL'Y 727, 750 (1991) (arguing that rules that require determinations of reasons can be time-consuming and wasteful);
128. See HENRY J. FRIENDLY, THE FEDERAL ADMINISTRATIVE AGENCIES: THE NEED FOR BETTER DEFINITION OF STANDARDS 24 (1962) ("[Clearer standards] should reduce the volume of cases; absence of standards encourages the filing of applications which their presence would render hopeless.").
129. See, e.g., McKithen v. Brown, 626 F.3d 143, 150 n. 3 (2d Cir. 2010) (noting that it stayed an appeal following the Supreme Court's grant of certiorari in a similar case).
130. See, e.g., Danielle Keats Citron, Technological Due Process, 85 WASH. U. L. REV. 1249, 1271-72 (2008) (warning of "automation bias", which causes decision makers to assume the veracity of information received from computers).
131. See, e.g., Gibson v. Berryhill, 411 U. S. 564, 578-79 (1973) (rejecting a decision maker for financial bias and "unprofessional conduct" because the decision maker had a financial stake in the outcome of the decision).
132. See Tanner v. United States, 483 U. S. 107, 115-26 (1987) (explaining that despite potential juror incompetence stemming from intoxication, jurors could not be forced to testify as to the intoxication or its effect on jury deliberations).
133. See Williams v. Walker-Thomas Furniture Co., 350 F.2d 445, 449 (D. C. Cir. 1965) (acknowledging the court's power to void a contract for unconscionability when the terms of the contract were so complex and grossly in favor of one party as to raise questions about whether that party could understand and respond to them).
134. FED. R. CIV. P. 65 (a).
135. But see Isaac Ehrlich & Richard A. Posner, An Economic Analysis of Legal Rulemaking, 3 J. LEGAL STUD. 257, 270 (1983) (suggesting that creating a system with more developed standards and rules may actually result in a greater need for ex ante legal advice, thereby requiring greater expense early on in a dispute).
136. See Marc Miller & Martin Guggenheim, Pretrial Detention and Punishment, 75 MINN. L. REV. 335, 335-40 (1990) (discussing a case in which a man was held, arguably erroneously, for years before the judge reached a determination on the issue of bail, only to have the defendant subsequently acquitted).
137. In old movies, books, and plays, for example, prospective heirs often renounce their vices and become uncharacteristically generous to compete for an elderly relative's affections. Once the testator renders a decision, however, the loser's incentives for prosocial behavior ceases. See, e.g., ROALD DAHL, CHARLIE AND THE CHOCOLATE FACTORY 156-62 (rev. ed. 1973) (testing of the children's moral fiber ends when the chocolate factory is awarded to Charlie Bucket);
138. WILLIAM SHAKESPEARE, KING LEAR act I (describing how upon deciding on the division of his kingdom, Lear suffers humiliation at the hands of deceitful heirs).
139. BRUCE ACKERMAN & JAMES S. FISHKIN, DELIBERATION DAY 52-59 (2004) (finding that the anticipation of participating in elections made people more informed on public issues and increased their level of public spiritedness).
140. See JERRY L. MASHAW, DUE PROCESS IN THE ADMINISTRATIVE STATE 158-67, 177-80 (1985);
141. Edmund L. Pincoffs, Due Process, Fraternity, and a Kantian Injunction, in NOMOS XVIII: DUE PROCESS 172, 180 (J. Roland Pennock & John W. Chapman eds., 1977).
142. See, e.g., Ronald M. Levin, Nonlegislative Rules and the Administrative Open Mind, 41 DUKE L. J. 1497, 1505 (1992) (arguing that an agency's notice-and-comment period ends up bolstering the legitimacy of the rules it adopts).
143. Professor Kaplow suggests that when a problem's frequency is low, it should be left for ex post resolution. See Louis Kaplow, An Economic Analysis of Legal Transitions, 99 HARV. L. REV. 509, 593 (1986) ("[W]hen the probability... is low, the expected risk-bearing cost also is far less."). If law must postpone some decisions, this is good advice: fewer parties will have to bear the costs of uncertainty in these cases. Nonetheless, unless the inputs to those decisions will become significantly less dear in the interim, if the decision must be made in any event it likely will produce less net value if postponed. Professor Kaplow is right only if a significant possibility exists that no decision will ever be needed (e.g., that no one will need to set permissible exposure levels for a particular toxin because that toxin never finds a practical use).
144. See Daniel A. Farber, The Rule of Law and the Law of Precedents, 90 MINN. L. REV. 1173, 1177-80 (2006) (suggesting that because parties adapt their behavior and their arguments according to the guidance that precedent provides, a judicial system that regularly ignored precedent would prove unworkable);
145. Anthony T. Kronman, Precedent and Tradition, 99 YALE L. J. 1029, 1038-39 (1990) (summarizing Professor Schauer's arguments in support of precedent, see Schauer, infra, as being premised on two grounds: that the predictability that accompanies precedent makes it easier for people to live their lives and that the fairness of the legal system is contingent on treating like cases alike);
146. Frederick Schauer, Precedent, 39 STAN. L. REV. 571, 595-602 (1987) (suggesting that all the arguments in favor of judicial precedent all focus on one issue-stability, or "stability for stability's sake");
147. see also United States v. Bensimon, 172 F.3d 1121, 1127 (9th Cir. 1999) (having once ruled, a court "must consider any prejudice that will accrue to the defendant as a result of the court's reversal of an earlier in limine ruling").
148. But see Earl Maltz, The Nature of Precedent, 66 N. C. L. REV. 367, 368 (1988) (arguing that while there is truth to the argument that precedent is necessary for certainty and reliance reasons, the damage caused to reliant parties by decisions that ignore precedent is mitigated if the decisions are only prospective in nature).
149. See David M. Trubeck et al., The Costs of Ordinary Litigation, 31 UCLA L. REV. 72, 114 (1983) (proposing that a net recovery-to-stakes ratio be used to determine plaintiff "success" in litigation, rather than a recovery-to-fee ratio where "recovery" refers to the gains from a favorable outcome and "fee" refers to the costs associated with pursuing litigation).
150. See, e.g., Lujan v. Defenders of Wildlife, 504 U. S. 555, 577-78 (1992) (holding that Congress cannot statutorily grant standing to sue to persons who lack a "concrete" injury in fact).
151. See, e.g., U. C. C. § 3-307 (1) (b) (1999) (presuming the validity of most signatures on checks).
152. See EINER ELHAUGE, STATUTORY DEFAULT RULES: HOW TO INTERPRET UNCLEAR LEGISLATION 41-69 (2008).
153. See, e.g., United States v. United Mine Workers, 330 U. S. 258, 293 (1947) (requiring compliance with even questionably lawful injunctions until lifted).
154. With the passage of years, some of these simplifications can gain great dignity, displacing the rules they helped cabin. 1 SIR FREDERICK POLLOCK & FREDERIC WILLIAM MAITLAND, THE HISTORY OF ENGLISH LAW 337 (Cambridge Univ. Press, 2d ed. 1968) (1895) (describing "Quia Emptores Terrarum", a statute which simplified English estates in land in 1290).
155. See Werner Z. Hirsch, Reducing Law's Uncertainty and Complexity, 21 UCLA L. REV. 1233, 1234-39 (1974) (analyzing the conditions under which such simplifications may be more or less desirable).
156. TOM R. TYLER, WHY PEOPLE OBEY THE LAW 40-56 (2006).
157. See Tom Ginsburg et al., Commitment and Diffusion: How and Why National Constitutions Incorporate International Law, 2008 U. ILL. L. REV. 201, 210 (characterizing constitutions as "mechanisms for making political precommitments", which "means 'becoming committed, bound[,] or obligated to some course of action or inaction or to some constraint on future action'")
158. (quoting THOMAS C. SCHELLING, STRATEGIES OF COMMITMENT AND OTHER ESSAYS 1 (2006)).
159. Cf. HAROLD DEMSETZ, ECONOMIC, LEGAL, AND POLITICAL DIMENSIONS OF COMPETITION 25 (1982) (imagining a "perfect decentralization model" in which government or firm authority or control would be unnecessary and "there would be no need to give up the flexibility and independence of exchange").
160. See, e.g., Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 COLUM. L. REV. 267, 437-38 (1998) (criticizing the "rigid requirements" of a piece of federal legislation that "flies in the face of... localism").
161. See JAMES JOLL, EUROPE SINCE 1870: AN INTERNATIONAL HISTORY 184 (1973) ("When, in a moment of clarity and anxiety, the [German] Kaiser asked if it would not be possible to act against Russia alone, he was told by his military advisers that it was out of the question to undo the plans elaborated over many years....").
162. See KEVIN DOUGHERTY WITH J. MICHAEL MOORE, THE PENINSULA CAMPAIGN OF 1862: A MILITARY ANALYSIS 46, 83 (describing McClellan's "characteristic inflexibility and tendency to give higher priority to the plan itself than the evolving situation", and citing it as "a key flaw of McClellan's generalship").
163. HELEN FIELDING, BRIDGET JONES'S DIARY 18 (1996).
164. See, e.g., Adam B. Cox & Eric A. Posner, The Second-Order Structure of Immigration Law, 59 STAN. L. REV. 809, 850 (2007) (promoting immigration reforms' "informational and flexibility advantages");
165. Lee Anne Fennell, Revealing Options, 118 HARV. L. REV. 1399, 1410 (2005) (seeking ways to "better interject flexibility into the interactions between current and future holders of land");
166. Henry Hansmann et al., Law and the Rise of the Firm, 119 HARV. L. REV. 1335, 1395 (2006) ("Flexibility in allocating ownership, control, and income rights is important in small firms....");
167. Pauline T. Kim, Lower Court Discretion, 82 N. Y. U. L. REV. 383, 413 (2007) (invoking H. L. A. Hart to defend "the need for flexibility to respond to unanticipated situations");
168. Eric A. Posner & Adrian Vermeule, Legislative Entrenchment: A Reappraisal, 111 YALE L. J. 1665, 1672 (2002) (praising flexibility as a value whose pursuit, in some policy areas, merits some sacrifice of stability);
169. William J. Stuntz, The Political Constitution of Criminal Justice, 119 HARV. L. REV. 781, 828 (2006) (arguing that "more flexible" constitutional law would be more "political market-friendly");
170. Jonathan L. Zittrain, The Generative Internet, 119 HARV. L. REV. 1975, 1990 (2006) (touting a "flexible, robust platform for innovation from all corners").
171. See Brian L. DeLeonardo, Inadequate Training in the Use of Non-Deadly Force as the Next Frontier in Federal Civil Liability: Analysis of the Baltimore City Baton Program, 26 U. BALT. L. F. 23, 28-29 (1996) (criticizing police officers' decisions to use certain weapons rather than the availability of those weapons).
172. See Charles D. Case, Problems in Judicial Review Arising from the Use of Computer Models and Other Quantitative Methodologies in Environmental Decisionmaking, 10 B. C. ENVTL. AFF. L. REV. 251, 255, 306 (1982) (arguing for the the use of models for environmental decision making based on "sufficient evidence" and "[]correct data").
173. Perhaps this statement is too sanguine: current debates about antiterrorist wiretapping, for example, at times seem to focus exclusively on the value of additional information without regard to the costs of obtaining it. See, e.g., Bob Egelko, Mukasey Backs Bush Efforts on Wiretapping, S. F. CHRON., Mar. 28, 2008, at B1.
174. Wilson v. Williams, 182 F.3d 562, 566 (7th Cir. 1999) (en banc) (emphasis omitted).
175. James W. McElhaney, Don't Be an Evidence Cop: Object When You Should, Not Just to Show That You Can, A. B. A. J., Feb. 2006, at 24, 24.
176. See Pena v. Leombruni, 200 F.3d 1031, 1034-35 (7th Cir. 1999) ("It is highly desirable that the trial judge rule on motions in limine well before trial so that the parties can shape their trial preparations in light of his rulings without having to make elaborate contingency plans."
177. (citing Wilson, 182 F.3d at 566));
178. see also MANUAL FOR COMPLEX LITIGATION (THIRD) § 32. 23 (1995) (endorsing pretrial motions in limine).
179. Cf. Rudolf Bahro, The Alternative in Eastern Europe 154 (David Fernbach trans., Verso ed. 1981) ("[P]riorities and preferences that go into [decision making] can in no way be determined in an objective scientific manner as long as there are still antagonistic interests in society, such as are given with the unequal distribution of scarce resources....").
180. See James B. Jacobs, Sentencing by Prison Personnel: Good Time, 30 UCLA L. REV. 217, 234-40 (1982) (explaining prison officials' reasons and procedures for revoking good time).
181. Michael Vitiello & Clark Kelso, A Proposal for a Wholesale Reform of California's Sentencing Practice and Policy, 38 LOY. L. A. L. REV. 903, 943-44 (2004) (discussing how a failed system of parole has led to extremely lengthy prison sentences).
182. See id. (arguing that many offenders in California receive sentences disproportionate to the severity of the of the offender's criminal conduct); LITTLE HOOVER COMM'N, BACK TO THE COMMUNITY: SAFE & SOUND PAROLE POLICIES at i (2003), available at http://www.lhc.ca.gov/studies/172/report172.pdf (noting the frequency with which parole revocation is used in lieu of prosecution for parolees suspected of committing new crimes).
183. See Daniel S. Goldberg, Government Precommitment to Tax Incentive Subsidies: The Impact of United States v. Winstar Corp. on Retroactive Tax Legislation, 14 AM. J. TAX POL'Y 1, 6-8 (1997) (explaining how predictable tax subsidies are economically efficient because people who act in reliance on them need not be compensated by a risk premium).
184. U. S. CONST. art I, § 10, cl. 1.
185. See United States v. Winstar Corp., 518 U. S. 839, 868-71 (1996).
186. See Michael J. Graetz, Legal Transitions: The Case of Retroactivity in Income Tax Revision, 126 U. PA. L. REV. 47, 48 (1977) (stating that subject to a few constitutional constraints, the legislature is relatively free to set whatever effective dates it chooses);
187. Saul Levmore, The Case for Retroactive Taxation, 22 J. LEGAL STUD. 265, 270 (1993) (giving an example of how a congressional tax proposal could reasonably be seen as retroactive).
188. See Daniel S. Goldberg, Tax Subsidies: One-time vs. Periodic: An Economic Analysis of the Tax Policy Alternatives, 49 TAX L. REV. 305, 305 (1994);
189. Kyle D. Logue, Tax Transitions, Opportunistic Retroactivity, and the Benefits of Government Precommitment, 94 MICH. L. REV. 1129, 1134 (1996) (describing how Congress often provides transition relief when it enacts changes in federal tax law). But see Kaplow, supra note 127, at 509 (arguing that relief from costs that arise from changes in government policy is better found in the market than in government efforts to relieve those costs).
190. MARTHA DERTHICK, POLICYMAKING FOR SOCIAL SECURITY 185 (1979)
191. (quoting JOHN J. CORSON & JOHN W. MCCONNELL, ECONOMIC NEEDS OF OLDER PEOPLE 133-34 (1956)).
192. See Franklin E. Zimring, Penal Policy and Penal Legislation in Recent American Experience, 58 STAN. L. REV. 323, 331-34 (2005) (revealing how throughout the 1990s and early twenty-first century, prosecutors in San Francisco almost never invoked "three-strikes" penalties, which were supposed to be mandatory under California law).
193. See Ronald Wright & Marc Miller, The Screening/Bargaining Tradeoff, 55 STAN. L. REV. 29, 31-35 (2002) (describing the prosecutorial "screening" process and suggesting that "early assessment" be part of that process).
194. See Fred C. Zacharias, The Politics of Torts, 95 YALE L. J. 698, 720-21 (1986) (describing the ways in which insurance companies exert political power over legislative decision making).
195. See Barker v. Wingo, 407 U. S. 514, 530-33 (1972) (identifying the factors courts must assess to determine whether a defendant has been deprived of his right to a speedy trial).
196. See, e.g., 7 C. F. R. § 273. 15 (c) (1) (2011) (requiring that within sixty days of receipt of a request for fair hearing, the agency must conduct a hearing, reach a decision, and notify the affected parties).
197. See State v. Brechon, 352 N. W.2d 745, 748 (Minn. 1984) (stating that the use of a motion in limine against a defendant in a criminal case is questionable considering the defendant's constitutional rights);
198. Douglas L. Colbert, The Motion in Limine in Politically Sensitive Cases: Silencing the Defendant at Trial, 39 STAN. L. REV. 1271, 1272-73 (1987) (suggesting that prosecutorial motions in limine violate defendants' Fifth and Sixth Amendment rights).
199. But see Christopher B. Mead, Motions in Limine: The Little Motion That Could, 24 LITIG. 52, 53 (1998) (finding increased reception in federal courts to prosecutorial motions in limine).
200. See, e.g., Javins v. First Nat'l Realty Corp., 428 F.2d 1071, 1083 n. 67 (D. C. Cir. 1970) (requiring that tenant-defendants who invoke the implied warranty of habitability pay their monthly rent into court in order to reduce potential harm to their landlords);
201. David A. Super, The Rise and Fall of the Implied Warranty of Habitability, 99 CALIF. L. REV. 389, 426-34 (2011) (criticizing these requirements).
202. See FED. R. EVID. 807. Although not all states have a "residual" exception to the hearsay rule
203. see, e.g., PA. R. EVID. 803, many states' rules of evidence mirror the Federal Rules of Evidence and include some form of the residual exception
204. see, e.g., W. VA. R. EVID. 803 (24).
205. FED. R. EVID. 807.
206. Cf. Ronald S. Longhofer, Michigan's New Catch-All Hearsay Exceptions, 75 MICH. B. J. 950, 951 (1996) (asserting that Michigan's adoption of the catch-all hearsay exception should have a positive impact so long as judges are vigilant to avoid admitting unreliable evidence).
207. See Jamie A. Grodsky, Genetics and Environmental Law: Redefining Public Health, 93 CALIF. L. REV. 171, 177, 267-68 (2005) (explaining how information concerning environmental exposure and effects may support tort claims even in the absence of manifest injury).
208. Cf. Jamie A. Grodsky, Genomics and Toxic Torts: Dismantling the Risk-Injury Divide, 59 STAN. L. REV. 1671, 1687-88 (2007) (noting that scientific developments have allowed the detection of evidence of chemically-induced changes long before the emergence of clinical symptoms).
209. See J. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394, 409 (1928) ("If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix [tariff] rates is directed to conform, such legislative action is not a forbidden delegation of legislative power.").
210. See Yakus v. United States, 321 U. S. 414, 426 (1944) ("Only if we could say that there is an absence of standards for the guidance of the Administrator's action, so that it would be impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed, would we be justified in overriding its choice of means for effecting its declared purpose....").
211. Morton v. Ruiz, 415 U. S. 199, 231 (1974) ("The power of an administrative agency to administer a congressionally created and funded program necessarily requires the formulation of policy and the making of rules to fill any gap left... by Congress.");
212. see Food and Nutrition Act of 2008, 7 U. S. C. § 2013 (c) (requiring the USDA to govern the Supplemental Nutrition Assistance Program (SNAP) through properly promulgated administrative rules).
213. See Allison v. Block, 723 F.2d 631, 636-38 (8th Cir. 1983) (allowing agency to "develop... criteria through adjudicative processes which give some precedential effect to prior... decisions" even where Congress indicated its desire for uniform regulations).
214. See Heckler v. Campbell, 461 U. S. 458, 467 & n. 11 (1983) (allowing for the standardization of Social Security disability decisions where the claimant retains the means of challenging the adjudicator's discretion);
215. Fed. Power Comm'n v. Texaco, Inc., 377 U. S. 33, 41-45 (1964) (same for regulatory permissions).
216. See Colin S. Diver, Policymaking Paradigms in Administrative Law, 95 HARV. L. REV. 393, 424-25 (1981) ("Many economists... see the reality of policymaking as nothing more than competition among influential partisans for selfish objectives. Indeed, participatory procedures are more consistent with the incrementalist's impulse to accommodate conflicting values than with the policy analyst's penchant for objectivity." (footnote omitted)).
217. See Peter H. Aranson et al., A Theory of Legislative Delegation, 68 CORNELL L. REV. 1, 41-42 (1982) (explaining that decision makers must consider the "perceptual thresholds" of those affected by their decisions to determine whether incremental action is preferable to a more "global" approach).
218. Some confusion can arise because the term "planning" can be juxtaposed either with leaving the free market undisturbed or with having the government intervene but wait to do so. Most critics of government planning have the first meaning in mind, not the second. See FRIEDRICH A. HAYEK, THE ROAD TO SERFDOM 48-50 (1944) (arguing that complex activities need more competition, not more planning);
219. Lon L. Fuller, Freedom-A Suggested Analysis, 68 HARV. L. REV. 1305, 1325 (1955) (arguing that planners may lack sufficient information).
220. See Indus. Union Dep't v. Am. Petroleum Inst., 448 U. S. 607, 685-86 (1980) (Rehnquist, J., concurring) (arguing that the nondelegation clause is important because, inter alia, it ensures "that important choices of social policy are made by Congress, the branch of our Government most responsive to the popular will");
221. JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 133-34 (1980) (arguing that the nondelegation doctrine exists in part to require legislators to remain accountable for their actions rather than shirk their responsibilities by passing on decision-making power to others);
222. Gerald E. Frug, The Ideology of Bureaucracy in American Law, 97 HARV. L. REV. 1276, 1295-96 (1984) (addressing the arguments that support and that question the legitimacy of the bureaucratic system).
223. See Cass R. Sunstein, Justice Scalia's Democratic Formalism, 107 YELE L. J. 529, 530-31 (1997)
224. (reviewing ANTONIN SCALIA ET AL., A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (1997)) (attributing this view to Justice Scalia).
225. See Nicholas Bagley & Richard Revesz, Centralized Oversight of the Regulatory State, 106 COLUM. L. REV. 1260, 1302 (2006) (discussing the considerable influence the President exercises over agency action by appointing loyalists to important agency posts);
226. cf. Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2345 (2001) (discussing how Presidents Reagan and Clinton, despite having vastly different policy agendas, both "countered the dominant contemporary forces of bureaucratic and political lethargy through their practices of influencing agency decisions").
227. Jerry L. Mashaw, Prodelegation: Why Administrators Should Make Political Decisions, 1 J. L. ECON. & ORG. 81, 97 (1985). Mashaw considers a "Law of Conservation of Administrative Discretion", which holds that attempting to confine discretion at one point in the process merely causes it to "migrate" elsewhere in the process.
228. See DAVID SCHOENBROD, POWER WITHOUT RESPONSIBILITY: HOW CONGRESS ABUSES THE PEOPLE THROUGH DELEGATION 44-45 (1993).
229. Yakus v. United States, 321 U. S. 414, 420, 426 (1944).
230. But see Clinton v. New York, 524 U. S. 417, 443-44 (1998) (invalidating a statute that set no standards for exercise of presidential authority to invalidate spending items and tax expenditures).
231. But see Whitman v. Am. Trucking Ass'ns, 531 U. S. 457, 472-73 (2001) (denying agencies any role in remedying insufficient legislative delegations).
232. Cf. Motor Vehicle Mfrs. Ass'n of the U. S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U. S. 29, 42 (1983) (suggesting that sudden change in policy is problematic).
233. Burger King Corp. v. Rudzewicz, 471 U. S. 462, 474-76 (1985).
234. Int'l Shoe Co. v. Washington, 326 U. S. 310, 316, 320 (1945).
235. Burnham v. Superior Court, 495 U. S. 604, 622-23 (1990).
236. Cf. WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION 10-11 (1994) (describing the dynamic nature of statutory interpretation in the United States "as a matter of practice and positive theory").
237. See Kyllo v. United States, 533 U. S. 27, 33 (2001) (noting that technological changes, such as aerial surveillance, have compelled courts to weigh the degrees of intrusiveness of different kinds of searches).
238. See, e.g., Cummock v. Gore, 180 F.3d 282, 285 (D. C. Cir. 1999) (describing the Federal Advisory Committee Act as requiring that the "creation, operation, and duration [of advisory committees] be subject to uniform standards and procedures" and "that Congress and the public remain apprised of their existence, activities, and cost"
239. (quoting Public Citizen v. U. S. Dep't of Justice, 491 U. S. 440, 446 (1989)).
240. See Johnson v. Transp. Agency, 480 U. S. 616, 629 n. 7 (1987) ("[I]f the Court has misperceived the political will, it has the assurance that because the question is statutory Congress may set a different course if it so chooses."
241. (quoting United Steelworkers v. Weber, 443 U. S. 193, 216 (1979) (Blackmun, J., concurring)).
242. Cf. In re Int'l Chemical Workers Union, 958 F.2d 1144, 1149-50 (D. C. Cir. 1992) (criticizing OSHA's six-year delay in promulgating a rule);
243. Thomas O. McGarity, The Expanded Debate over the Future of the Regulatory State, 63 U. CHI. L. REV. 1463, 1523 (1996) (describing agencies' difficulties in promulgating rules). (Pubitemid 126408737)
244. JOHN THIBAUT & LAURENS WALKER, PROCEDURAL JUSTICE: A PSYCHOLOGICAL ANALYSIS 77-80 (1975). This evidence suggests that Professor Christie is mistaken in assuming that we naturally distrust decision makers we cannot closely supervise. See Christie, supra note 19, at 754-55.
245. See, e.g., Paula A. Monopoli, Gender and Constitutional Design, 115 YELE L. J. 2643, 2647-49 (2006) (describing a strong voter preference for a decisive, agentic male executive).
246. Government Performance and Results Act of 1993, Pub. L. No. 103-62, 107 Stat. 285
247. (codified in scattered sections of 5 U. S. C. and 31 U. S. C.).
248. See John Kamesky, A Brief History (Jan. 1999), http://govinfo.library. unt.edu/npr/whoweare/history2.html (providing an overview of the Clinton Administration's National Partnership for Reinventing Government to "reform the way the federal government works").
249. See Sidney A. Shapiro & Ronald F. Wright, The Future of the Administrative Presidency: Turning Administrative Law Inside-Out, 65 U. MIAMI L. REV. 577, 611 (2011) (briefly describing the Program Assessment Rating Tool (PART)). The tendency to view government as a business has shaped the selection of leaders arguably to the benefit of candidates with executive experience. Over the past three decades, for example, governors and former governors have run against current or former members of Congress in seven presidential elections and have won six (former Georgia Governor Jimmy Carter versus former Congressman Gerald Ford in 1976; former California Governor Ronald Reagan versus former Senator Walter Mondale in 1984; former Massachusetts Governor Michael Dukakis (the sole loser of the of the group) versus former Congressman George H. W. Bush in 1988;
250. Cf. Richard S. Dunham, 'Change Has Come to America': Obama Turned Red States Blue, Broke Barriers, HOUSTON CHRONICLE, NOV. 5, 2008, http://www.chron. com/disp/story.mpl/nation/6095707.html (reporting that Presidentelect Obama would become the first senator elected President since John F. Kennedy in 1960). Private-sector executives with no political experience have won governors' mansions in numerous states-Arizona, Kentucky, Massachusetts, Texas, and Virginia, among others-as well as the mayoralties of several large cities, including New York.
251. See, e.g., Nick Allen, Michael Bloomberg Elected Mayor of New York for a Third Time, THE TELEGRAPH, Nov. 4, 2009, http://www.telegraph.co.uk/news/ worldnews/northamerica/usa/6498609/Michael-Bloomberg-elected-mayor-of-New-York- for-a-third-time.html (reporting the mayoral victory of former Salomon Brothers executive Michael Bloomberg). These executives come to office promising to clean up the mess, attacking the legislature as much as their predecessors or opponents.
252. See Daniel Howes, Snyder Taps into Engler People to Rebuild State, DETROIT NEWS, Dec. 14, 2010, at A10. Although the complexity of state government has flummoxed some businessmen-governors
253. cf., e.g., Tyler Bridges, Election Is Up in the Air for Now, TIMES-PICAYUNE (New Orleans), May 22, 1995, at A1 (describing a governor with a business background as being perceived as a failure), many arrive in office equipped to exercise power more quickly and effectively than converted legislators. They also often arrive, for better or worse, without an intuitive appreciation for the role of the legislature.
254. Laurie Reynolds, Intergovernmental Cooperation, Metropolitan Equity, and the New Regionalism, 78 WASH. L. REV. 93, 137-49 (2003).
255. Scholars, too, have increasingly accepted efficiency as a central normative foundation of government. Some of this emphasis is seen in conservative law and economics scholarship that sees cost-benefit analysis as a tool for reducing the scope of government regulation. See, e.g., Richard A. Posner, The Social Costs of Monopoly and Regulation, 83 J. POL. ECON. 807, 818-19 (1975). More recently, however, liberals too have begun singing the praises of governing methods whose chief virtue is their efficiency.
256. See, e.g., Jon D. Michaels, Beyond Accountability: The Constitutional, Democratic, and Strategic Problems with Privatizing War, 82 WASH. U. L. Q. 1001, 1076-83 (2004) (illustrating how broad executive control over outsourcing American military activities evades the need for congressional and popular approval of executive action).
257. See Whitman v. Am. Trucking Ass'ns, 531 U. S. 457, 474-76 (2001) (discussing the breadth of the nondelegation doctrine and asserting that "we have 'almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.'"
258. (quoting Mistretta v. United States, 488 U. S. 361, 416 (1989) (Scalia, J., dissenting)).
259. See, e.g., NLRB v. Bell Aerospace Co., 416 U. S. 267, 294 (1974) ("[An agency] is not precluded from announcing new principles in an adjudicative proceeding[,] and... the choice between rulemaking and adjudication lies in the first instance within the [agency's] discretion. ");
260. SEC v. Chenery Corp., 332 U. S. 194, 203 (1947) ("[T]he choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency." (emphasis omitted)).
261. See, e.g., Am. Hosp. Ass'n v. Bowen, 834 F.2d 1037, 1055-57 (D. C. Cir. 1987) (declining to find that a lack of formal rules constrains an agency's exercise of its discretion through informal policy guidance).
262. But see United States v. Mead Corp., 533 U. S. 218, 231-34 (2001) (affording less deference to agency interpretations of statutes through policy guidance).
263. Indeed, Perry v. Sindermann, 408 U. S. 593, 601-03(1972), gives the executive an incentive not to constrain its discretion: those constraints may create property rights enforceable through the Due Process Clause.
264. See David A. Super, The Quiet "Welfare" Revolution: Resurrecting the Food Stamp Program in the Wake of the 1996 Welfare Law, 79 N. Y. U. L. REV. 1271, 1305-07 (2004).
265. See id. at 1306-07 n. 121 (giving examples of those clearances and why they tend to interact to clog the regulatory process); see also Peter L. Strauss, Speech, From Expertise to Politics: The Transformation of American Rulemaking, 31 WAKE FOREST L. REV. 745, 760 (1996) (commenting on Jimmy Carter's presidential campaign against "big government" and its increasingly ossified rule-making process).
266. This may be seen perhaps as a special case of skepticism of the idea that rules can ever be effectual in resolving important disputes. For an analysis of why the argument for formal rules may be undermined in actual legal settings, see Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685, 1699-1701 (1976).
267. See George R. Goethals, Presidential Leadership, 56 ANN. REV. PSYCHOL. 545, 548-49, 563 (2005) (discussing Sigmund Freud's theories of leadership in the context of the American presidents and arguing that there is a positive correlation between power motivation and presidential success).
268. See Ronit Kark et al., The Two Faces of Transformational Leadership: Empowerment and Dependency, 88 J. APPLIED PSYCHOL. 246, 254 (2003) (finding support for "the hypothesized relationships between transformational leadership, followers' identification with the leader and the organizational unit, dependence on the leader, and certain indicators of followers' empowerment").
269. See, e.g., MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, at 31-62 (1977) (attributing shifts in private law rules in the early nineteenth century in part to judges coming to identify with industrialists rather than with landowners).
270. See, e.g., Firms with Bush-Cheney Ties Clinching Katrina Deals, USA TODAY, Sept. 10, 2005, http://www.usatoday.com/news/washington/2005-09-10- katrina-contracts-x.htm (reporting on close connections between government officials and private companies awarded reconstruction contracts following Hurricane Katrina).
271. See generally Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317, 321-23 (1987) (arguing that the equal protection doctrine should incorporate the unconscious racism entrenched within American culture).
272. See Michael J. Platow et al., A Special Gift We Bestow on You for Being Representative of Us: Considering Leader Charisma from a Self-Categorization Perspective, 45 BRIT. J. SOC. PSYCHOL. 303, 305 (2006) (discussing "in-group prototypicality" as a "key feature of leadership");
273. see also Kenneth J. Levine, Voter Decision Making: The Tensions of Personal Identity, Personal Ethics, and Personal Benefit, 49 AM. BEHAV. SCIENTIST 63, 64 (2005) (recognizing the "personal identity variable"-the voter's identification with the candidate-as one of the factors involved in researching voting behavior).
274. See Michael A. Hogg, A Social Identity Theory of Leadership, 5 PERSONALITY & SOC. PSYCHOL. REV. 184, 187-90 (2001) (discussing group dynamics and the influence of group leaders via prototypicality, social attraction and attribution, and information processing).
275. See generally Michael Wenzel & Prita Jobling, Legitimacy of Regulatory Authorities as a Function of Inclusive Identification and Power over Ingroups and Outgroups, 36 EUR. J. SOC. PSYCHOL. 239 (2006) (examining the tripartite power relationship between authority, ingroup, and outgroup in the context of self-identification and legitimacy).
276. The failure to address global climate change is likely to make disaster response an ever more important governmental task in the years to come. See David A. Super, From the Greenhouse to the Poorhouse: Carbon-Emissions Regulation and the Rules of Legislative Joinder, 158 U. PA. L. REV. 1093, 1143-57 (2010) (describing the difficulties of determining what the components of viable climate-change legislation should be).
277. See William L. Waugh, Jr., & Ronald John Hy, Introduction to Emergency Management, in HANDBOOK OF EMERGENCY MANAGEMENT: PROGRAMS AND POLICIES DEALING WITH MAJOR HAZARDS AND DISASTERS 1, 2 (William L. Waugh, Jr., & Ronald John Hy eds., 1990).
278. See SELECT BIPARTISAN COMM'N TO INVESTIGATE THE PREPARATION FOR AND RESPONSE TO HURRICANE KATRINA, A FAILURE OF INITIATIVE, H. R. REP. NO. 109-377, at 87-92 (2006) [hereinafter A FAILURE OF INITIATIVE], available at http://www.gpoaccess.gov/katrinareport/mainreport.pdf: [I]mprovements to levee strength which may have mitigated or prevented... critical breaches... were rejected by the competing local organizations. There also appear to have been lapses in both maintenance and inspections of selected levees, including those that breached. Also, prior to Hurricane Katrina, residents along those same levees reported they were leaking, another potential lapse in maintenance.
279. Establishing sound plans to mitigate the physical and financial harm from potential disasters also can protect the government from ex post demands for
280. See RICHARD A. POSNER, CATASTROPHE: RISK AND RESPONSE 9 (2004) (comparing this problem to that of early hominids "had they been prone to let their attention wander from situations fraught with a high probability of immediate death... to low-probability menaces").
281. Although this famous quote is often attributed to Senator Dirksen, historians have been unable to conclusively attribute this utterance to him. See "A Billion Here, A Billion There...", DIRKSEN CONGRESSIONAL CENTER, http://www.dirksencenter.org/print-emd-billionhere.htm (last updated Jan. 15, 2009).
282. Although Congress renamed the Food Stamp Program the Supplemental Nutrition Assistance Program (SNAP) in 2008, 7 U. S. C. A. § 2013 (a) (West 2010), this Article follows the still-common convention of referring to "food stamps", in particular because the immediate aftermath of Hurricane Katrina, see infra Part IV, occurred before the name change.
283. See STANDING RULES OF THE SENATE R. XVI, S. DOC. NO. 110-9 (2007) (prohibiting new or general legislation, including that to create or modify a program, on appropriations bills). This process can become even more opaque to the public if the legislation establishing the program authorizes-but does not appropriate-a specific sum for the program.
284. See, e.g., Affordable Care Act: Prevention and Public Health, NAT'L ASS'N OF CNTYS., http://www.naco.org/programs/csd/Documents/ Health%20Reform%20Implementation/Prevention %20and%20Wellness.pdf (last visited Apr. 11, 2011) (listing various programs in the Affordable Care Act that are authorized but not appropriated). These authorization ceilings typically have little practical effect, but they give the appearance of being exercises of quantitative discretion.
285. See, e.g., 42 U. S. C. §§ 601-619 (2006) (establishing block grants to states for the temporary assistance for needy families (TANF)).
286. See, e.g., DAVID M. BEARDEN & ROBERT ESWORTHY, CONG. RESEARCH SERV., RS22386, ENVIRONMENTAL PROTECTION AGENCY: FY2007 APPROPRIATIONS HIGHLIGHTS 1 (2007).
287. See generally Cynthia R. Farina, Deconstructing Nondelegation, 33 HARV. J. L. & PUB. POL'Y 87 (2010) (discussing the federal courts' reluctance to enforce nondelegation principles);
288. Richard B. Stewart, Adminstrative Law in the Twenty-First Century, 78 N. Y. U. L. REV. 437, 454 (2003) ("The affirmative side of administrative law in structuring discretionary lawmaking will increasingly rely on structures that are not centered on courts and thus will conserve scarce judicial resources.").
289. See Ross Douthat, The Dilemmas of Entitlement Reform, N. Y. TIMES (Mar. 17, 2011, 3:03 PM), http://douthat.blogs.nytimes.com/2011/03/17/the-dilemmas-of- entitlement-reform/;
290. Michael Sherer, Can Obama Actually Achieve Entitlement Reform?, TIME (Feb. 23, 2009), http://www.time.com/time/politics/article/0, 8599, 1881223, 00.html.
291. See RULES OF THE HOUSE OF REPRESENTATIVES R. XXI, H. R. Res. 5, 112th Cong. (2011) (enacted);
292. STANDING RULES OF THE SENATE R. XVI, S. DOC. NO. 110-9 (2007).
293. See, e.g., Norton v. S. Utah Wilderness Alliance, 542 U. S. 55, 61-62, 64-65 (2004) (disallowing judicial review under the APA of an agency's failure to act where challengers were not seeking a sufficiently specific act).
294. The "Bridge to Nowhere" was a bridge that would link Ketchikan, Alaska, on one island in southeastern Alaska, to its airport on another island and replace the ferry service previously used to connect the two islands. At a cost of $398 million, the proposed bridge was widely condemned as a prime example of federal "pork-barrel spending", as earmarks are popularly coined. See Alaska: End Sought for "Bridge to Nowhere", N. Y. TIMES, Sept. 22, 2007, at A12.
295. Michael Coleman, N. M. Senator's Earmark Comes Under Fire, ALBUQUERQUE J., Dec. 18, 2010, at A1 ("'I believe that sometimes it is necessary to earmark funding for our state, rather than leaving all funding decisions up to federal agencies', [Senator] Bingaman said, adding that he does not believe eliminating earmarks would necessarily lead to budget cuts.");
296. Greg Allen, Morning Edition: To Defenders, Some Earmarks Are Sound Politics, NPR (Dec. 22, 2010), http://www.npr.org/2010/12/22/132205569/to- defenders-some-ear marks-are-sound-politics ("The problem with eliminating earmarks is that you're essentially ceding those decisions, for the most part, to bureaucrats within agencies that may or may not have done their homework." (quoting Kirk Fordham, CEO of the Everglades Foundation)).
297. Patrick Fisher, Entitlements and the Congressional Budget Process, in 1 ENCYCLOPEDIA OF PUBLIC ADMINISTRATION AND PUBLIC POLICY 437, 437 (Jack Rabin ed., 2003).
298. See George K. Yin, Temporary-Effect Legislation, Political Accountability, and Fiscal Restraint, 84 N. Y. U. L. REV. 174, 178-80 (2009) (arguing that "temporary-effect legislation", or discretionary spending programs, "increases political accountability and may enhance fiscal restraint").
299. A will made by a person of unsound mind is presumptively invalid, because [in order to make a donative transfer], the testator... must be capable of knowing and understanding in a general way the nature and extent of his or her property, the natural objects of his or her bounty, and the disposition that he or she is making of that property, and must also be capable of relating these elements to one another and forming an orderly desire regarding the disposition of the property. RESTATEMENT (THIRD) OF PROP.: WILLS AND OTHER DONATIVE TRANSFERS § 8.1 (b) (2003).
300. See, e.g., Thomas W. Merrill, Capture Theory and the Courts: 1967-1983, 72 CHI.-KENT L. REV. 1039 (1997).
301. See MARK TUSHNET, THE NEW CONSTITUTIONAL ORDER 15-16 (2003) (contending that politics in the United States are unusually polarized at present).
302. See, e.g., CONRAD BLACK, RICHARD M. NIXON: A LIFE IN FULL 365-67 (2007) (describing Richard Nixon's campaign to cut taxes during the 1960 presidential campaign).
303. See Omnibus Budget Reconciliation Act of 1981, Pub. L. No. 97-35, 95 Stat. 357;
304. Economic Recovery Tax Act of 1981, Pub. L. No. 97-34, 95 Stat. 172.
305. Former OMB Director David Stockman christened this strategy as "starving the beast." Paul Krugman, The Tax-Cut Con, N. Y. TIMES, Sept. 14, 2003, § 6 (Magazine), at 54, 56 (also noting that in an interview on National Public Radio, Grover Norquist, President of Americans for Tax Reform, expressed the desire to "reduce [government] to the size where I can drag it into the bathroom and drown it in the bathtub").
306. See Tax Equity and Fiscal Responsibility Act of 1982, Pub. L. No. 97-248, 96 Stat. 324.
307. See Karen Hosler, House Passes Democratic Budget Plan-GOP Alternative Falls Short of Goal by $100 Billion, BALT. SUN, Oct. 17, 1990, at 1A (describing then-Minority Whip Newt Gingrich's steadfast refusal to agree to tax increases, signaling a Republican rebuke of the budget proposed by President George H. W. Bush, a fellow Republican, and a deep divide on the issue among Republicans). In 1994, the "Republican Revolution" resulted in the Republican Party taking control of the House of Representatives for the first time in forty years, with Gingrich at the helm.
308. See Andrea Stone, Parts of Republican Revolution Fade with Age: Party Adopts Practices That It Once Criticized, USA TODAY, Jan. 19, 2003, at 5A.
309. See Dana Milbank, From His "Great Goals" of 2000, President's Achievements Mixed, WASH. POST, Sept. 2, 2004, at A01 (reporting that while President Bush had mixed success in accomplishing his objectives during his first term, he had made "enormous progress" toward the goal of cutting taxes).
310. See, e.g., Jobs and Growth Tax Relief Reconciliation Act of 2003, Pub. L. No. 108-27, 117 Stat. 752 (increasing the exemption amount for the individual Alternative Minimum Tax and lowering income taxes from dividends and capital gains).
311. See Richard Cowan, House Republicans Seek $32 Billion in Spending Cuts, REUTERS, Feb. 3, 2011, available at http://www.reuters.com/article/2011/ 02/03/us-usa-congress-spending-idUSTRE7125Z420110203?pageNumber=2 ("In their 2010 congressional campaigns, Republicans pledged to cut $100 billion from Obama's [fiscal year 2011 budget] request and to set domestic discretionary spending back to 2008 levels-before massive government bailouts and spending measures were instituted to help rescue an economy plunging into a deep recession. ").
312. For example, although congressional Republicans introduced several bills in 1993 and 1994 that would have expanded health insurance coverage vastly, President Clinton and congressional Democrats felt they could not politically afford to pass legislation that was not clearly theirs. Jay Carney, Is This the Last Best Hope?, TIME, July 4, 1994, at 28.
313. For example, Vice President Al Gore's National Performance Review, and his celebrated appearance on late night television to demonstrate the waste he had found, had little partisan content: he made little attempt to suggest that the waste was the fault of his Republican predecessors rather than being an intrinsic feature of the federal government. This message badly undercut the Clinton administration's proposals for expanding the federal role in organizing health care and other services. See Joe Klein, The Vice President's Ashtray, NEWSWEEK, Aug. 16, 1993, at 27.
314. Split control of national government forced a series of short-term truces between 1995 and 2001, but the divide remained. See Allen Schick, A Surplus, If We Can Keep It: How the Federal Budget Surplus Happened, BROOKINGS (2000), http://www.brookings.edu/articles/2000/winter-governance-schick.aspx ("Divided government has blocked Republican ambitions for large tax cuts and deterred Democrats from big increases in social spending.").
315. See Patrick S. Roberts, Shifting Priorities: Congressional Incentives and the Homeland Security Granting Process, 22 REV. POL'Y RES. 437, 438-39 (2005).
316. See David A. Super, The Political Economy of Entitlement, 104 COLUM. L. REV. 633, 696-703 (2004) ("[The] difficulty in describing nonentitlement programs systematically skews political debates about them. In particular, it greatly complicates advocacy for expanding or preserving such programs and provides opportunities for dedicated opponents to maneuver program reductions going far beyond what policymakers and voters think they are approving.").
317. S. COMM. ON HOMELAND SEC. AND GOV'T AFFAIRS, HURRICANE KATRINA: A NATION STILL UNPREPARED, S. Rep. No. 109-322, at 110-12 (2006) [hereinafter A NATION STILL UNPREPARED], available at http://www.gpoaccess.gov/serialset/creports/ katrinanation. html.
318. See A FAILURE OF INITIATIVE, supra note 256, at 81.
319. A NATION STILL UNPREPARED, supra note 301, at 113.
320. See A FAILURE OF INITIATIVE, supra note 256, at 82.
321. See A NATION STILL UNPREPARED, supra note 301, at 81.
322. See HARRY ESTILL MOORE ET AL., BEFORE THE WIND: A STUDY OF THE RESPONSE TO HURRICANE CARLA 124 (1963).
323. See, e.g., Erik Auf der Heide, Principles of Hospital Disaster Planning, in DISASTER MEDICINE, 95, 99 (David E. Hogan & Jonathan L. Burnstein eds., 2d ed. 2007) (instructing disaster-relief planners to assume that "a shortage of supplies and medical personnel will exist").
324. See Philip J. Weiser, Communicating During Emergencies: Toward Interoperability and Effective Information Management, 59 FED. COMM. L. J. 547, 549-53 (2007).
325. See Heckler v. Day, 467 U. S. 104, 119 (1984) (overturning the lower court's order limiting the Social Security Administration's delays in adjudicating its reconsideration of disability applications).
326. But see Harley v. Lyng, 653 F. Supp. 266, 276 (E. D. Pa. 1986) (declaring that "hunger takes no holidays" in ordering the state to expedite action on food stamp applications).
327. Hurricane Rita Bus Owner Found Guilty, USA TODAY, Oct. 3, 2006, http://www.usa today.com/news/nation/2006-10-03-rita-bus-x.htm (reporting that the owner of the bus that exploded and killed twenty-three people during the Hurricane Rita evacuation was convicted for poorly maintaining his fleet of buses and for not requiring his drivers to fill out vehicle inspection reports).
328. See Michael Grabell & Vanesa Salinas, Schools Relied on Troubled Bus Firm; Educators Complained, But District Had Few Alternatives, DALLAS MORNING NEWS, Nov. 12, 2005, at 1A (describing the failure of a bus operator to comply with a self-inspection system).
329. See Carlos Guerra, Hurricanes Hit Social Services Amid Cloud Over Welfare Reform, SAN ANTONIO EXPRESS-NEWS, OCT. 23, 2005, at 1B (describing administrative difficulties).
330. See CENTER FOR PUBLIC POLICY PRIORITIES, UPDATING AND OUTSOURCING ENROLLMENT IN PUBLIC BENEFITS: THE TEXAS EXPERIENCE 44 (2006) (describing an ad hoc system and the necessity to input incorrect information into that system for it to function), available at http://www.cppp. org/files/3/CPPP-PrivReport-(FS) .pdf;
331. David A. Super, Privatization, Policy Paralysis, and the Poor, 96 CALIF. L. REV. 393, 395 (2008) (describing the sweeping ambitions of Texas's privatization plan).
332. But see A FAILURE OF INITIATIVE, supra note 256, at 80 (quoting Report Chairman Tom Davis as saying "[t]hat's probably the most painful thing about Katrina, and the tragic loss of life: the foreseeability of it all");
333. A NATION STILL UNPREPARED, supra note 301, at 149 ("Based on its own models and experience, [the Louisiana government] could have foreseen the inadequacy of many of its plans and resources....").
334. A NATION STILL UNPREPARED, supra note 301, at 113; id. at 89: The hypothetical Hurricane Pam was posited to be a strong, slow-moving Category 3 storm preceded by 20 inches of rain. The exercise projected results including over 60, 000 deaths, more than 1 million people evacuated, and 10 to 20 feet of water in New Orleans. Except for the deaths figure, the Hurricane Pam projections were generally close to the real-life experience of Katrina.
335. See, e.g., 42 U. S. C. § 5131 (2006) (providing funds for the creation and updating of federal and state disaster preparedness plans);
336. LA. REV. STAT. ANN. § 29:72 (2007) ("[T]o preserve the lives and property of the people of the state of Louisiana, it is hereby found and declared to be necessary:... [t]hat statewide and local plans for homeland security and emergency preparedness be prepared and approved without further delay and be maintained current to the maximum extent possible.").
337. A NATION STILL UNPREPARED, supra note 301, at 557.
338. U. S. DEP'T OF HOMELAND SEC., NATIONAL RESPONSE PLAN PRV-2 (2004).
339. A NATION STILL UNPREPARED, supra note 301, at 551.
340. CITY OF NEW ORLEANS COMPREHENSIVE EMERGENCY MANAGEMENT PLAN (2000) [hereinafter CEMP], available at http://msnbcmedia.msn. com/i/msnbc/Components/ Interactives/News/US/Katrina/docs/City%20Of%20New%20Orleans%20Emergency%20 Preparedness%20-%20Hurricanes.pdf;
341. see also DOUGLAS BRINKLEY, THE GREAT DELUGE: HURRICANE KATRINA, NEW ORLEANS, AND THE MISSISSIPPI GULF COAST 19 (2006) ("[T]he [CEMP] didn't have any novel answers or fresh approaches.... New Orleans did not possess a realistic hurricane plan....").
342. A NATION STILL UNPREPARED, supra note 301, at 154 (2006).
343. See A NATION STILL UNPREPARED, supra note 301, at 113.
344. INNOVATIVE EMERGENCY MGMT., SOUTHEAST LOUISIANA CATASTROPHIC HURRICANE FUNCTIONAL PLAN (DRAFT) 78(2004), available at http://msnbcmedia.msn. com/i/msnbc/Components/Interactives/News/US/Katrina/docs/Southeast-Louisiana- Catastrophic-Hurricane-Functional-Plan.pdf.
345. A FAILURE OF INITIATIVE, supra note 256, at 103.
346. See A NATION STILL UNPREPARED, supra note 301, at 248 (concluding that "[l]ongterm planning and preparation by the city before Katrina approached the Gulf Coast could have obviated this nearly 24-hour effort to resolve these issues").
347. See Laura Maggi, Roundup of Buses for Storm Bungled; Blanco Documents Show Staff Confusion, TIMES-PICAYUNE (New Orleans), Dec. 6, 2005, at 1.
348. See Bill Walsh, FEMA's Dome Airlift Plan Never Got Off the Ground; Concept Not Viable, National Guard Says, TIMES-PICAYUNE (New Orleans), Dec. 9, 2005, at 4.
349. See also Kaplow, supra note 11, at 570 ("[T]he cost [is] greater if a standard [of discretion] governs because the adjudication will also require giving content to the standard."). Recognition that Congress could not formulate and enact timely responses to each disaster was a major impetus for enacting permanent federal disaster-relief legislation. See SUBCOMM. ON NATURAL DISASTER RELIEF, COMM'N ON INTERGOVERNMENTAL RELATIONS, NATURAL DISASTER RELIEF 1 (1955) (recognizing that previously, "by the time Congress had acted..., much hardship and suffering had occurred").
350. See Heckler v. Campbell, 461 U. S. 458, 467-68 (1983) (noting that it wants to avoid forcing a government agency "continually to relitigate issues that may be established fairly and efficiently in a single rulemaking proceeding").
351. See John O. Calmore, Close Encounters of the Racial Kind: Pedagogical Reflections and Seminar Conversations, 31 U. S. F. L. REV. 903, 910 (1997) (noting the danger of racial subordination in judging).
352. Michael P. Van Alstine, The Costs of Legal Change, 49 UCLA L. REV. 789, 854-58 (2002).
353. Seeking a Cure for the Hurricane Hangover, ECONOMIST, Sept. 16, 2005, http://www.economist.com/node/4418260?story-id=4418260 (noting that while Michael Brown technically resigned from his position with FEMA, he was "perhaps pushed by his bosses, after a storm of criticism about the old-boy connections that got him the job and the lack of experience he brought to it").
354. Cf. Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 N. Y. U. L. REV. 461, 493-94 (2003) (challenging "the idea of majoritarianism as the linchpin of legitimacy").
355. See, e.g., A NATION STILL UNPREPARED, supra note 301, at 366 (2006) (discussing a DHS document drafted on August 30, 2005, titled "Decisions needed", that included decisions that presumably could have been made prior to the storm making landfall, such as "identiy[ing] location[s] of alternate shelter" (second alteration in original)).
356. See, e.g., THE WHITE HOUSE, THE FEDERAL RESPONSE TO HURRICANE KATRINA: LESSONS LEARNED, app. B at 136 (2006) (noting, for example, that "[p]rior to Katrina making landfall, the [FNS] had proactively pre-positioned food in warehouses in Louisiana and Texas, making food readily available for disaster meal service programs").
357. See 7 C. F. R. pts. 271-280 (2011).
358. See 7 C. F. R. § 280. 1 (authorizing procedures for the emergency food assistance of victims of disasters);
359. FOOD AND NUTRITION SERVICE, U. S. DEP'T OF AGRIC., DISASTER SUPPLEMENTAL NUTRITION ASSISTANCE PROGRAM: WAIVER-RELATED PUBLICATIONS 4-6(2009), www.fns.usda.gov/disasters/response/D-SNAP-Handbook/waivers.doc (describing waivers available to states wishing to deviate from the standard food stamp program regulations).
360. Cf. A FAILURE OF INITIATIVE, supra note 256, at 201 (concluding that the military played an "invaluable role" but that "coordination was lacking").
361. See, e.g., Gordon Russell, Nagin Gets Mixed Reviews; Evacuation Plans, Superdome Use Criticized, TIMES-PICAYUNE (New Orleans), Oct. 23, 2005, at 1;
362. see also Kevin Hechtkopf, Congress Grills Michael Brown, CBS NEWS (Sept. 28, 2005), http://www.cbsnews.com/stories/2005/09/27/katrina/main886469.shtml (discussing the exchange of blame between Brown, Nagin, and members of Congress over the failures of the government's response to Hurricane Katrina).
363. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105
364. (codified in scattered sections of 7, 8, and 42 U. S. C.).
365. Under AFDC, states determined the income eligibility limit and the maximum grant level. 42 U. S. C. § 602 (a) (7) (1994) (repealed 1996). They also had de facto control over the rate at which benefits were phased down for families with income: about ten states chose to disregard a substantial amount of that income to allow it to "fill the gap" between their payment levels and the amount they determined that families needed. The Department of Health and Human Services (HHS) gave states even more flexibility to dispense with provisions of federal law with which they disagreed through loosely defined waivers under section 1115 of the Social Security Act.
366. See 42 U. S. C. § 1315 (2006).
367. David A. Super, Rethinking Fiscal Federalism, 118 HARV. L. REV. 2544, 2585 (2005) (noting that after 1996, Congress froze funding for TANF and then reduced its available funds).
368. See R. Kent Weaver, The Structure of the TANF Block Grant, BROOKINGS (2002), http://www.brookings.edu/papers/2002/04welfare-weaver.aspx (noting that by 2001, "most states were spending all of their current TANF allotments[] and many had begun drawing on reserves from past years").
369. See GENE FALK, CONG. RESEARCH SERV., RS222446, TEMPORARY ASSISTANCE FOR NEEDY FAMILIES (TANF): ITS ROLE IN RESPONSE TO THE EFFECTS OF HURRICANE KATRINA 3-4(2005), available at http://www.policyarchive.org/handle/10207/bitstreams/ 4200.pdf (explaining how TANF would be used in the post-Katrina relief effort).
370. See WENDELL PRIMUS & ED LAZERE, CTR. ON BUDGET & POLICY PRIORITIES, SUPPLEMENTAL GRANTS SHOULD BE EXTENDED FOR FISCAL YEAR 2002, at 1(2001), available at http://www.cbpp. org/archiveSite/2-6-01wel.pdf (describing the wide disparities in TANF funding per poor child among the states).
371. see MARK GREENBERG, CTR. FOR LAW & SOC. POLICY, NEW TANF LAW PROVIDES ADDITIONAL FUNDS FOR KATRINA RELIEF: KEY IMPROVEMENTS STILL NEEDED 1-5(2005), available at http://www.clasp.org/admin/site/publications-archive/files/0185.pdf (describing and criticizing legislation);
372. ROBERT GREENSTEIN, CTR. ON BUDGET & POLICY PRIORITIES, MEETING THE BASIC NEEDS OF HURRICANE KATRINA VICTIMS: RECOMMENDATIONS FOR FEDERAL POLICYMAKERS 10-12 (rev. Oct. 20, 2005), available at http://www.cbpp. org/files/9-9-05pov.pdf (describing hurricane survivors' range of needs, including on-going living expenses).
373. See Super, supra note 297, at 701-03 (describing how debates over functional standards provide greater transparency than those about arbitrary appropriations amounts). These standards might, for example, direct that levees be sufficient to withstand all floods except those expected every fifty or one hundred years or that public buildings be designed to withstand earthquakes up to a certain severity. If Congress were not prepared to be so specific, it could establish criteria for determining which precautions were affordable. Cf. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 402 (1971) (enforcing a requirement conditioned on the availability of a "feasible and prudent alternative").
374. See Lujan v. Defenders of Wildlife, 504 U. S. 555, 564 (1992) (emphasizing that imminence or actuality is required for standing).
375. See Lujan v. Nat'l Wildlife Fed., 497 U. S. 871, 883 (1990) (requiring a showing of injury to the plaintiff specifically).
376. See Allen v. Wright, 468 U. S. 737, 753 (1984) (stating that a "judicially cognizable injury" is required).
377. Cf. City of Los Angeles v. Lyons, 461 U. S. 95, 105-10 (1983) (denying injunctive relief on the basis that the plaintiff did not demonstrate that he would be wronged again).
378. See Gonzaga Univ. v. Doe, 536 U. S. 273, 278-86 (2002) (rejecting a § 1983 claim because the statute in question did not unambiguously create individual rights that could provide a private cause of action).
379. See Alexander v. Sandoval, 532 U. S. 275, 282-85 (2001) (holding that a private cause of action can stem from a regulation only insofar as the regulation it interprets or applies is a statute that allows for such private cause of action).
380. See David A. Super, Are Rights Efficient? Challenging the Managerial Critique of Individual Rights, 93 CALIF. L. REV. 1051, 1133-35 (2005).
381. See DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U. S. 189, 196-97 (1989) (allowing recovery only where the state has increased someone's vulnerability).
382. See generally Wil Haygood & Ann Scott Tyson, "It Was as if All of Us Were Already Pronounced Dead": Convention Center Left a Five-Day Legacy of Chaos and Violence, WASH. POST, Sept. 15, 2005, at A1 (describing the "nightmarish" conditions in the days and weeks after Katrina struck).
383. Anne Hull & Doug Struck, At Nursing Home, Katrina Dealt Only the First Blow, WASH. POST, Sept. 23, 2005, at A1.
384. See Malcolm J. Harkins III & Julia McMillen, Uncharted Waters: Managed Care and Long Term Care Provider Contracts, 30 J. HEALTH & HOSP. L. 179, 179-81 (1997).
385. This immunity is the combined product of doctrines such as official immunity for individuals and the refusal to recognize a private right of action under statutory language preserving broad discretion. See, e.g., Gonzaga Univ. v. Doe, 536 U. S. 273, 278-86 (2002). A third barrier to recovery, sovereign immunity, is far less directly affected by the extent of discretion afforded officials.
386. On the benefits of spreading the cost of losses occasioned by the government's poor performance, and the possibility that liability might result in loss minimization as well, see Ciraolo v. City of New York, 216 F.3d 236, 242-50 (2d Cir. 2000) (Calabresi, J., concurring)
387. and PETER H. SCHUCK, SUING GOVERNMENT: CITIZEN REMEDIES FOR OFFICIAL WRONGS 100-21 (1983).
388. Indeed, revolutionaries often regard moderates, rather than their ideological opposites, as the biggest obstacles to achieving their grand visions. Moderates, however, often make good public administrators: those not motivated by an extreme political vision are more likely to enter public service out of a general sense of professionalism. An antimoderate atmosphere therefore can create a scarcity of competent public administrators. See David A. Super, The New Moralizers: Transforming the Conservative Legal Agenda, 104 COLUM. L. REV. 2032, 2089-92 (2004).
389. R. STEVEN DANIELS & CAROLYN L. CLARK-DANIELS, TRANSFORMING GOVERNMENT: THE RENEWAL AND REVITALIZATION OF THE FEDERAL EMERGENCY MANAGEMENT AGENCY 7(2000), available at http://www.fema.gov/pdf/library/danielsreport.pdf.
390. Christopher Lee, Civil Service Overhaul Has History of Bipartisan Support: Four Presidents Sought Changes, WASH. POST, Sept. 5, 2005, at A29.
391. Some go farther, arguing that vulnerability to disasters and inadequate disaster relief result from excessive state intervention in the economy. Barun S. Mitra, Dealing with Natural Disaster: Role of the Market, in LIBERTY AND HARD CASES 35, 50-58 (Tibor R. Machan ed., 2002) ("[T[here have been constant attempts by governments in most countries, particularly in this century, to intervene in the marketplace and consequently to hamper the ability of the people to deal with natural calamities effectively.").
392. Waugh & Hy, supra note 255, at 4-8; see David A. Super, Laboratories of Destitution: Democratic Experimentalism and the Failure of Antipoverty Law, 157 U. PA. L. REV. 541, 543-45 (2008) (faulting decentralization for the failure to address poverty in the wake of Hurricane Katrina).
393. see also KATHLEEN J. TIERNEY ET AL., FACING THE UNEXPECTED: DISASTER PREPAREDNESS AND RESPONSE IN THE UNITED STATES 48 (2001).
394. Experience with minor, nonthreatening events of a similar type can lull people into complacency. See RONALD W. PERRY ET AL., EVACUATION PLANNING IN EMERGENCY MANAGEMENT 36-37 (1981).
395. See Sheryll D. Cashin, Federalism, Welfare Reform, and the Minority Poor: Accounting for the Tyranny of State Majorities, 99 COLUM. L. REV. 552, 560 (1999) ("[O]utside a few socially conservative congressional mandates, states have very broad discretion on how to spend TANF funds." (footnote omitted)).
396. See Elaine M. Ryan, A Call for Partnership Now, POL'Y & PRAC., Dec. 1, 2005, at 1 (describing food stamps as "[p]erhaps the most effective federal program in the time of national disaster" and noting that "[p]rogram enrollment was fast-paced" after Hurricane Katrina hit).
397. Editorial, Privatization Lessons Learned, AUSTIN AMERICAN-STATESMAN, Dec. 29, 2006, at A14 (describing Texas's private contractor's employees as lacking the skills to perform the jobs of their public employee predecessors).
398. See Jason Spencer, Gradually, Help Is Getting to Needy Evacuees: Recovery Center Is Struggling with Staffing, Long Lines to Arrange Housing and Other Aid, HOUSTON CHRONICLE, Oct. 2, 2005, at B12 (describing food stamp offices' struggles to keep up with evacuees' demands);
399. see also Becky Bowman, Relief Center Overwhelmed; Hundreds Waiting Outside in the Heat Are Left out When the Doors Close Early, HOUSTON CHRONICLE, Sept. 29, 2005, at B1 (describing the food stamp office as so overwhelmed that its staff had as many applicants as they could handle until 7 p. m. by early afternoon).
400. Central Texas Digest, AUSTIN AMERICAN-STATESMAN, Oct. 11, 2005, at B2.
401. See Jon Michaels, Deforming Welfare: How the Dominant Narratives of Devolution and Privatization Subverted Federal Welfare Reform, 34 SETON HALL L. REV. 573, 660-68 (2004) (arguing that the optimal way to achieve welfare reform is through a "balanced federalism" in which private providers act as partners with the federal government).
402. A NATION STILL UNPREPARED, supra note 301, at 248-49 (2006).
403. Cf. Stephanie Strom, Red Cross Head Quits; Board Woes, Not Storm, Are Cited, N. Y. TIMES, Dec. 14, 2005, at A32 ("Public officials, survivors and even Red Cross volunteers have lobbed complaints about the [Red Cross's] performance, on issues like its absence in the flood plains most directly affected by the storm.").
404. RUSSELL R. DYNES, ORGANIZED BEHAVIOR IN DISASTER 194-95 (1970).
405. See Hema V. Shenoi, Note, Compassion Without Competence: Mandating a Financial Oversight Committee in New Disaster Relief Nonprofit Organizations, 74 BROOK. L. REV. 1253, 1254-62 (2009).
406. For example, at a time when gasoline was largely unavailable on the Gulf Coast, it required survivors from the Mississippi coast to travel fifty miles inland to apply for aid and then, when they arrived, announced it would not process any application without a photograph of a damaged house. Jerry Mitchell, Katrina: The Recovery, CLARION-LEDGER (Jackson, Miss.), Oct. 4, 2005, at 1A.
407. See Saul Levmore, Coalitions and Quakes: Disaster Relief and Its Prevention, 3 U. CHI. L. SCH. ROUNDTABLE 1, 2 (1996) (suggesting that "people might decline to take preventative steps, including the purchase of insurance, because they expect relief in the event of disaster").
408. Cf. Risa Palm & John Carroll, Illusions of Safety: Culture and Earthquake Hazard Response in California and Japan 93, 95 (1998) (finding that a notion of "shared belief in individual responsibility for the future" has resulted in Americans preferring less government involvement in repair and restoration after a disaster).
409. See 42 U. S. C. § 1320b-5 (2006) (granting HHS authority to waive certain requirements of the Social Security Act during national emergencies);
410. see also Dennis G. Smith, Director of Center for Medicaid and State Operations, U. S. Dep't of Health & Hum. Servs., Letter to State Medicaid Directors and State SCHIP Directors, Attachment, at 4 (Sept. 16, 2005) (Multi-State Section 1115 Demonstration Application Template), http://www.cms. gov/smdl/downloads/SHO091605.pdf.
411. See 397 U. S. 254, 264 (1970) (holding that welfare recipients were entitled to a hearing before the termination of their benefits).
412. See, e.g., Barbara H. Fried, Ex Ante/Ex Post, 13 J. CONTEMP. LEGAL ISSUES 123, 158 (2003) (agreeing "on the general case for sticking with ex ante perspective in decisionmaking under uncertainty");
413. William Landes & Richard A. Posner, The Independent Judiciary in an Interest-Group Perspective, 18 J. L. & ECON. 875, 885 (1976) ("The value... of courts is a function in major part of the predictability of their decisions, and decision according to the original meaning of the statute rather than according to the ever-shifting preferences of successive legislatures is probably an important source of that predictability....").