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In his recent article on legislative delegation, Professor Matthew Stephenson proposes an elegant and provocative model of legislative delegation. The model displays its creator’s considerable mathematical skill and ingenuity. Professor Stephenson also works out in admirable detail the possible implications of the model. And unlike many a scholar, he carefully refrains from making inflated claims for his approach. Despite these merits, the model may be in need of some basic revisions. As we shall see, some of its key predictions seem implausible enough to suggest the need to revisit core premises.
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| Essentially, Stephenson’s model predicts whether a legislator would prefer to delegate the power to enforce and interpret a statute to a court or to an administrative agency. At the root of the model is the reasonable assumption that courts differ from agencies in two regards. First, courts are more reluctant to depart from previous decisions. Second, agencies are more likely to be consistent in their decisions at any given time because those decisions are likely to reflect the ideological leanings of the current administrators. In working through the implications of these insights, Stephenson takes multiple variables into account; one of the strengths of the model is its ability to provide a neat package for so many possible influences on delegation decisions.
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| But if we assemble some of the model’s key predictions and tease out their implications,
something seems to be awry. Under the model, short-sightedness can produce a tendency to favor stability, while far-sightedness favors unstable legal outcomes. Similarly, under some circumstances, legislators become more willing to delegate to an entity the less they like the entity’s ideological position. This seems unlikely. Not surprisingly, the empirical evidence does not support the model.
[ More ] |
Suggested citation: Daniel A. Farber, Modeling Coherence, Stability, and Risk Aversion in Legislative Delegation Decisions, 119 Harv. L. Rev. F. 157 (2006), http://www.harvardlawreview.org/forum/issues/119/feb06/farber.pdf
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Replies in the Harvard Law Review Forum |
The Legislative Choice Between Agencies and Courts:
A Response to Farber and Vermeule
by Matthew C. Stephenson
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