The Delegation Lottery
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)
Professor Matthew Stephenson’s article on legislative allocation of delegated power between agencies and courts is clear, rigorous, and brief, and makes a tangible contribution. The paper models “the decision calculus faced by a rational, risk-averse legislator who must choose between delegation to an agency and delegation to a court.” On the assumption that delegation to agencies tends to produce consistency across issues while delegation to courts tends to produce consistency over time, a risk-averse legislator interested in reducing variance along either dimension will face a tradeoff between intertemporal risk diversification and interissue risk diversification. From this basic tradeoff, Stephenson derives comparative statics about the rational, risk-averse legislator’s choice of delegates under various conditions. Stephenson himself describes the article’s contribution as “incremental,” and this seems appropriate. In general, there are two (compatible) ways of evaluating positive models: by reference to the realism of the model’s assumptions and by reference to the model’s ability to generate testable predictions that yield results with real-world significance. I shall suggest that the limitations of Stephenson’s legislative-delegation model stem from excessively artificial assumptions and from an inability to yield significant predictions — in either the political or statistical sense.
With respect to assumptions, the tradeoff between realism and mathematical tractability means that necessary simplifications are part and parcel of the enterprise; but a good model is one that carves the subject at its joints, capturing the central dynamic of the motivating examples. In the legislative-delegation model Stephenson offers, however, the crucial simplifications seem not only artificial, but arbitrary — as though a political scientist decided to study only the behavior of left-handed senators, deferring right-handed ones to future research. In particular, it is unsatisfying to model legislators as entering a “policy lottery” by enacting ambiguous delegating statutes, but then also to picture them as clearly specifying the identity of the delegate. The same institutional and political factors that tend to produce a first-order policy lottery over statutory substance also tend to produce a second-order “delegation lottery” over the question whether agencies or courts have ultimate interpretive authority. With respect to predictions, the model implies comparative statics that yield various hypotheses, but it seems unlikely that these hypotheses, even if testable, are significant in a political sense. The factors the model includes are, at best, second-decimal considerations relative to the factors it excludes. Indeed, if the included factors really are second-decimal considerations for rational legislators, the model may not be testable in any event: the included factors might not be sufficiently weighty to leave statistically significant traces that are discernable through the fog of political behavior.
119 Harv. L. Rev. F. 105 (2006) | DOWNLOAD PDF
