Modeling Coherence, Stability, and Risk Aversion in Legislative Delegation Decisions
Responding to Matthew C. Stephenson, Legislative Allocation of Delegated Power: Uncertainty, Risk, and the Choice Between Agencies and Courts , 119 Harv. L. Rev. 1035 (2006)
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.
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.
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.
119 Harv. L. Rev. F. 157 (2006) | DOWNLOAD PDF
