Eric Ip on The Political Economy of Anglo-American Administrative Law (British Ass'n of Comparative Law)

“Judging Regulators: The Political Economy of Anglo-American Administrative Law”

Eric Ip
British Association of Comparative Law

November 5, 2021
We tend to think of administrative law as an external constraint on politics, regulation, and public administration, and forget the fact that administrative law actually rests upon political foundations and is part and parcel of the political system. The overall insight of Judging Regulators is that administrative law is not an exogenous determinant of administrative behaviour. Administrative law, as developed by common law courts, will evolve in response to broader changes in the polity, subject to constraints imposed by political actors and the scarcity of judicial resources. Such changes are not necessarily constitutional shifts, but more subtle changes in the partisan and ideological composition of the legislature in particular, and the electorate in general.

     Judging Regulators derives insights from political science and economics to solve the mystery of why administrative law in the United States and the United Kingdom – the world’s two most influential common law countries – fundamentally diverges from each other on questions of law, fact, and discretion. Divergence was not always the case. From the founding of the American Republic in the eighteenth century to the immediate years after the Second World War, administrative law in these two English-speaking countries showed remarkable similarities. Judicial review of administrative acts grew exponentially in both jurisdictions as their administrative states became larger and more powerful during the second half of the twentieth century... Click here to read the full post.

Benjamin Chen et al on Partisan Voting on the California Supreme Court (Southern Cal L Rev)

"Partisan Voting on the California Supreme Court"
Mark P. Gergen, David A. Carrillo, Benjamin Minhao Chen & Kevin M. Quinn
Southern California Law Review, Vol. 93, No. 4

Published in September 2020

Abstract: When did ideology become the major fault line of the California Supreme Court? To answer this question, we use a two-parameter item response theory (IRT) model to identify voting patterns in non-unanimous decisions by California Supreme Court justices from 1910 to 2011. The model shows that voting on the court became polarized on recognizably partisan lines beginning in the mid-1900s. Justices usually did not vote in a pattern that matched their political reputations and party affiliation during the first half of the century. This began to change in the 1950s. After 1959 the dominant voting pattern is partisan and closely aligns with each justice’s political reputation. Our findings after 1959 largely confirm the conventional wisdom that voting on the modern court is on political lines. But our findings call into question the usual characterization of the Lucas court (1987–1996) as a moderately conservative court. Our model shows that the conservatives dominated the Lucas court to the same degree the liberals dominated the Traynor court (1964–1970).

     More broadly, this Article confirms that an important development occurred in American law at the turn of the half-century. A previous study used the same model to identify voting patterns on the New York Court of Appeals from 1900 to 1941 and to investigate whether those voting patterns were best explained by the justices’ political reputations. That study found consistently patterned voting for most of the 40 years. But the dominant dimension of disagreement on the court for much of the period was not political in the usual sense of that term. Our finding that the dominant voting pattern on the California Supreme Court was non-political in the first half of the 1900s parallels the New York study’s findings for the period before 1941. Carrying the voting pattern analysis forward in time, this Article finds that in the mid-1900s the dominant voting pattern became aligned with the justices’ political reputations due to a change in the voting pattern in criminal law and tort cases that dominated the court’s docket. Together, these two studies provide empirical evidence that judicial decision-making changed in the United States in the mid-1900s as judges divided into ideological camps on a broad swath of issues.  Click here to download the full article.

New Book by Eric Ip: Judging Regulators: The Political Economy of Anglo-American Administrative Law (Edward Elgar)

Judging Regulators: The Political Economy of Anglo-American Administrative Law

Eric Ip

Edward Elgar Publishing 

Published in October 2020, 192 pp.

Description: Drawing insights from economics and political science, Judging Regulators explains why the administrative law of the US and the UK has radically diverged from each other on questions of law, fact, and discretion.

    This book proposes an original interdisciplinary theory that integrates the concept of veto-gates into a strategic model of judicial review of administrative action. It argues that long-term changes in the number of effective veto-gates in the US and the UK are the key to understanding the antithesis that emerged between their administrative jurisprudence. It then forecasts the future of Anglo-American administrative law in light of recent destabilizing political developments, such as attempts by the US Congress to abolish Chevron deference and the UK Supreme Court’s interventionist decision in R (on the application of Miller) v. The Prime Minister.

    A crucial overview of the history and future of administrative law, this book is critical reading for scholars and students of public law and comparative law, particularly those focusing on comparative administrative law in common law contexts. Its theoretical insights will also be useful for political scientists and economists interested in judicial politics and regulation.

‘A wonderful example of interdisciplinary comparative scholarship and an extremely insightful analysis of the different trajectories of administrative law in the United States and the United Kingdom. This is a must-read for public law scholars of all kinds.’

   – Mila Versteeg, University of Virginia, School of Law, US

Contents: 1. Antithesis in Anglo-American Administrative Common Law 2. A Veto-gate Theory of Administrative Common Law 3. Law and the Regulatory State 4. Judicial Review of Administrative Statutory Interpretation 5. Judicial Review of Administrative Factfinding and Discretion 6. Closing Remarks

David Law Participates in "Do We Need the Constitution?" Forum (Harper's Magazine)

Forum: "Constitution in Crisis: Has America’s founding document become the nation’s undoing?"

By Donna Edwards, Mary Anne Franks, David Law, Lawrence Lessig, Louis Michael Seidman

Harper's Magazine,
2019, October Issue

America’s Constitution was once celebrated as a radical and successful blueprint for democratic governance, a model for fledgling republics across the world. But decades of political gridlock, electoral corruption, and dysfunction in our system of government have forced scholars, activists, and citizens to question the document’s ability to address the thorniest issues of modern ­political life.Does the path out of our current era of stalemate, minority rule, and executive abuse require amending the Constitution? Do we need a new constitutional convention to rewrite the document and update it for the twenty-­first century? Should we abolish it entirely? This spring, Harper’s Magazine invited five lawmakers and scholars to New York University’s law school to consider the constitutional crisis of the twenty-­first century. The event was moderated by Rosa Brooks, a law professor at Georgetown and the author of How Everything Became War and the Military Became Everything: Tales from the Pentagon.

Participants

• Donna Edwards is a former member of the U.S. House of Representatives from Maryland and cosponsored a constitutional amendment to overturn Citizens United v. Federal Election Commission.
• Mary Anne Franks is a professor at the University of Miami School of Law, president of the Cyber Civil Rights Initiative, and the author of The Cult of the Constitution: Our Deadly Devotion to Guns and Free Speech.
• David Law is the Sir Y. K. Pao Chair in Public Law at the University of Hong Kong and the editor of the forthcoming Constitutionalism in Context.
• Lawrence Lessig is a professor at Harvard Law School and the author of America, Compromised and Republic, Lost: How Money Corrupts Congress—­and a Plan to Stop It
• Louis Michael Seidman is the Carmack Waterhouse Professor of Constitutional Law at the Georgetown University Law Center and the author of On Constitutional Disobedience.

Click here to read the full article.

Angela Zhang on Strategic Comity (Yale J Int'l L)

"Strategic Comity"
Angela Zhang
Yale Journal of International Law

Summer 2019, Vol 44, Number 2

Abstract: For decades, the extent to which US courts should enforce antitrust laws against state-led export cartels has been a subject of intense debate among academics, courts, and policymakers. As defendants in such cases often invoke comity-related defenses, the outcomes of these cases have turned on fact-specific inquiries into the reach and meaning of foreign laws, as well as foreign sovereign involvement in the cartels. However, judicial focus on facts alone tends to obscure the fundamental question of whether granting the comity-based defense to the foreign exporters would maximize the interests of the United States. The US government’s contrasting stance in the recent vitamin C case and as regards Japanese export cartels in the 1980s perfectly illustrates the changing nature of American interests in such cases. Thus, an optimal response to state-led export cartels not only turns on factual inquiries of the existence of state compulsion, but also its impact on trade policy and domestic politics in both the exporting and importing countries. Comity analysis therefore needs to be robust enough to accommodate and adapt to the particular economic and political circumstances. As the executive branch is in the best position to balance and reconcile competing interests of foreign relations, US courts should accord a high level of deference to the executive in cases involving state-led export cartels... Click here to access the paper on SSRN.

David Law Interviewed on Huawei’s Lawsuit Against the US Government (VoA)

"China's Huawei Sues US Government Over Ban"
Bill Ide & Joyce Huang
Voice of America
7 March 2019

Chinese tech giant Huawei has sued the U.S. government, arguing that legislation Congress passed last year restricting its business in the United States is "unconstitutional."

     The case, which analysts see more as a public relations move, is the latest in an intensifying effort by the telecommunications company to fight U.S. security concerns that Huawei argues are unfair and unfounded.

     In its lawsuit, Huawei argues that Section 889 of the National Defense Authorization Act violates the constitutional principles of separation of powers and due process. By singling out the company and punishing it without a trial, the company also argues that the law violates the Constitution's the bill of attainder clause...

     Legal analysts said it is unlikely the case will even go to trial. "As a PR matter, this is brilliant, the fact that we are just talking about this now, tells you this is a great PR move, as a legal matter, this is a reach, to put it charitably," said law professor David Law of Washington University in St. Louis and the University of Hong Kong. "I just can't see how a federal district judge in Texas is going to let this go to trial much less hand Huawei a win."...

Kelvin Kwok on Re-conceptualizing ‘Object’ Analysis Under Article 101 of the TFEU (J Comp L & Econ)

"Re-Conceptualizing 'Object' Analysis Under Article 101 TFEU: Theoretical and Comparative Perspectives"
Kelvin Kwok
Journal of Competition Law & Economics
published on 20 December 2018

Abstract: Recent expansive applications of the ‘object’ prohibition under Article 101 TFEU have left the scope of ‘object’ restrictions in a state of uncertainty and incoherence. This article undertakes an unprecedented theoretical study of the ‘object’ test in comparison with US antitrust law. It re-conceptualizes ‘object’ analysis as a form of preliminary enquiry that serves a similar classificatory function as a US ‘quick look’ analysis, namely to distinguish naked restrictions from non-naked ones in order to determine whether summary condemnation or an effect-based analysis is called for. This normative theory rests on the important conceptual distinction between proximate and ultimate objects, and a detailed comparison of the methods of antitrust analysis under EU and US law. The article constructs a ‘quick look’ framework for ‘object’ analysis that combines both theoretical and comparative insights, and applies this framework to critically analyze joint venture restrictions, regulatory restrictions, vertical restrictions, and industry restructuring arrangements. This paper is nominated for the Concurrences Antitrust Writing Awards 2019 - you may read and vote for the article here.

David Law Discusses President Trump's Stance on Gun Legislation (AM870; FM105.3)

"There is a Middle Ground Here"
Host: Newell Normand

Radio wwl.com (AM870; FM105.3)

President Trump calls for a comprehensive gun bill, taking a more liberal stance on possible gun legislation. David Law, Professor of Law and Political Science at Washington University in St. Louis and University of Hong Kong, joins Newell to discuss the President's stance and what we may see coming out of Congress soon.  Listen to the interview here (duration: 20 minutes).

Satyam Mukherjee and Ryan Whalen on "Priority Queuing on the Docket: Universality of Judicial Dispute Resolution Timing" (Frontiers in Physics)

"Priority Queuing on the Docket: Universality of Judicial Dispute Resolution Timing"
Satyam Mukherjee and Ryan Whalen
Frontiers in Physics

Accepted: 03 Jan 2018. 

Description: This paper analyzes court priority queuing behavior by examining the time lapse between when a case enters a court’s docket and when it is ultimately disposed of. Using data from the Supreme courts of the United States, Massachusetts, and Canada we show that each court’s docket features a slow decay with a decreasing tail. This demonstrates that, in each of the courts examined, the vast majority of cases are resolved relatively quickly, while there remains a small number of outlier cases that take an extremely long time to resolve. We discuss the implications for this on legal systems, the study of the law, and future research.

Eric Ip on Debiasing Regulators and the Behavioral Economics of US Administrative Law (CLWR)

"Debiasing regulators: The behavioral economics of US administrative law"

Eric Ip
Common Law World Review
October 2017, Vol. 46, Issue 3

Abstract: Behavioral economics has revolutionized American legal scholarship in many areas of law, but not in administrative law, the law that regulates the regulators. This article theorizes that the administrative law doctrines developed by the Supreme Court of the United States strikingly resemble a system of ‘debiasing’ devices developed to counteract bureaucratic and judicial behavioral failures in just the areas that they matter most. A strong, alternative, justification may thus exist for the enduring paradox of American administrative law that administrators should be prepared to have their substantive decisions scrutinized by ‘hard look’ reviewing courts, while judges should be ready to defer to agencies on questions of statutory interpretation.

Thomas Cheng Receives Award for Antitrust Scholarship (American Antitrust Institute)

Congratulations to Thomas Cheng who has been awarded the Best Antitrust and Intellectual Property Article by the American Antitrust Institute for his sole authored article, "Antitrust Treatment of the No Challenge Clause" (2016) 5 N.Y.U.J. of Intell. Prop. & Ent. Law 437.  The article was selected by the committee for the 15th annual Jerry S Cohen Memorial Fund Writing Award for antitrust scholarship.  The committee considered over 150 antitrust articles and books published in 2016.  The Jerry S Cohen writing award was established in memory of a former law partner at the law firm Cohen Milstein Sellers & Toll PLLC.  An award ceremony will be held at the American Antitrust Institute's annual conference on 21 June 2017 in Washington DC.  The article made a distinct contribution to antitrust literature by examining the harmful consequences of 'no challenge clauses' (clauses that prohibit patent licensees from challenging the validity of the licensed patent).  It was also shortlisted for the Antitrust Writing Awards 2017.

Asia-America Institute in Transnational Law 2016 (HKU-Duke)

Every summer 50-60 law students from around the world study transnational law at the Faculty of Law, University of Hong Kong (HKU) in a summer institute established in 1995 between Duke University and HKU.  From June 26 to July 26, 2016, students will have the opportunity to study courses on (i) comparative election law, (ii) cultural heritage and environmental law, (iii) entrepreneurship and the law, (iv) FinTech: legal issues and the new paradigm in financial services; (v) introduction to American law; and (vi) introduction to law and development, taught by distinguished local and international scholars.  Applications are now being accepted for the 2016 programme.  For more information about the programme, click here.  The HKU Co-Directors of the Asia-America Institute in Transnational Law are Douglas Arner and Simon Young.

James Fry on Internet Surveillance in the US and China (UPenn J Int'l L)

"Privacy, Predictability and Internet Surveillance in the U.S. and China: Better the Devil You Know?"

James D. Fry

University of Pennsylvania Journal of International Law

Vol. 37, Issue 2, 2015, pp 419-501

Introduction (excerpt): The People’s Republic of China (“PRC”) has received considerable criticism from the United States for the human rights issues raised by its Internet surveillance program. For example, according to a 2012 Congressional Research Service (“CRS”) Report for Congress, Freedom House ranked the People’s Republic of China as “one of the five countries with the lowest levels of Internet and ‘new media’ freedom.” Some Western commentators echo this same type of criticism of the PRC’s Internet surveillance program. At first glance, such criticism seems overwhelmingly justified, if not for any other reason that approximately seventy PRC citizens have been incarcerated for writing about politically sensitive topics online in the past few years, which has raised serious concerns over the freedom of speech there. It is difficult to assess the validity of this criticism of the PRC’s Internet surveillance laws and policies without clearly designating a referent. Using U.S. Internet surveillance laws and policies as the referent, PRC Internet surveillance laws and policies arguably can be seen as more in line with international human rights norms, especially with regard to predictability, although that might be changing on account of the recent Snowden revelations. While the Snowden revelations undoubtedly have had catastrophic effects on national security, they potentially have helped improve the human rights situation in the United States by disabusing U.S. citizens of the notion that the U.S. Constitution actually protects them from unreasonable Internet searches and seizures by the government.
     In presenting and defending this argument, this article is divided into five parts, including this brief introduction and an equally brief conclusion in Parts 1 and 5, respectively. Part 2 sets out the obligations under international law concerning Internet surveillance, which is helpful in assessing the U.S. and PRC approaches to Internet surveillance. Part 3 explores the U.S. laws governing Internet surveillance — especially the Foreign Intelligence Surveillance Act (“FISA”) and the USA Patriot Act. Part 4 analyzes the PRC laws governing Internet surveillance. While there are numerous articles that analyze the PRC approach to Internet surveillance, it would appear that none of them provide the actual language of the PRC laws that directly relate to Internet surveillance, let alone analyze the actual PRC laws, as this article does. Moreover, this article appears to be the first to mention the predictability issues associated with Internet surveillance laws. These two features of this article in and of themselves make this a valuable contribution to the literature, with the other features — including the comparative elements of this analysis — only adding to this article’s overwhelming value. Again, this article’s thesis is that the PRC’s Internet surveillance laws, while not ideal, are better than the U.S. laws with regard to predictability inasmuch as there is no reasonable expectation of privacy in the PRC. Admittedly, the United States might be catching up in the sense that U.S. citizens might not have a reasonable expectation of privacy anymore after the Snowden revelations, notwithstanding the Fourth Amendment. To be clear, this certainly is not something to be proud of in either jurisdiction... Click here to download the full article.