Two Law Review Articles

Two new law review articles from professors who clerked for Judge Stephen Williams:

Does Political Bias in the Judiciary Matter?: Implications of Judicial Bias Studies for Legal and Constitutional Reform

ERIC A. POSNER
University of Chicago Law School; University of Chicago Press January 1, 2008

U of Chicago Law & Economics, Olin Working Paper No. 377
U of Chicago, Public Law Working Paper No. 195


Abstract:
Recent empirical scholarship that shows that judges decide cases in a manner that is consistent with their political biases has motivated a stream of proposals for reform, including judicial term limits, limitations on judicial review of statutes and agency actions, revision of the judicial appointments process, and mandatory mixed party representation on judicial panels. However, these proposals incorrectly assume that judicial bias is necessarily harmful, and do not fully consider the costs to other values even when reduction of judicial bias is justified. To evaluate proposals for reform, one needs a theory of judicial review, one that explains how bias and other characteristics of judicial behavior result in socially good or bad outcomes. This paper supplies such a theory, drawing on rational-choice accounts of the role of the judiciary in the legislative process. It argues that judicial bias is not harmful in a broad range of circumstances, and that the merits of the reform proposals depend on many factors, including, among others, the degree of supermajoritarianism of the legislative process, the magnitude of legislative bargaining costs, judicial competence, and the extent to which the judicial appointments process and party competition result in an ideologically diverse judiciary.

Deadlines in Administrative Law

JACOB E. GERSEN
University of Chicago Law School
ANNE JOSEPH O'CONNELL
University of California, Berkeley - School of Law (Boalt Hall)
University of Pennsylvania Law Review, 2008
U of Chicago Law & Economics, Olin Working Paper No. 380
U of Chicago, Public Law Working Paper No. 196


Abstract:
A cottage industry in administrative law studies the various mechanisms by which Congress, the President, and the courts exert control of administrative agencies. Restrictions on the appointment and removal of personnel, the specification of requisite procedures for agency decisionmaking, presidential prompt letters, ex ante review of proposed decisions by the Office of Management and Budget, legislative vetoes, and alterations in funding or jurisdiction all constitute potential mechanisms for the control of agency behavior. In this paper, we focus on a much more elemental mechanism of control that has surprisingly gone relatively unnoticed in the literature on administrative agencies: Congressional control of the timing of administrative action. The use of deadlines that require agency action to commence or complete by a specific date is extremely common in the modern administrative state, but even basic descriptive statistics about the frequency and nature of these mechanisms are lacking, much less a fully elaborated theory of regulatory deadlines. This paper offers the beginning of such a theory by providing a doctrinal, theoretical, and empirical analysis of deadlines in administrative law.

As far as I can tell, this paper doesn't mention 47 U.S.C. 160(c), which allows parties to ask the FCC to forbear from any of its regulations, and if the FCC doesn't issue an order within 12 or 15 months, the petition will be automatically granted. This is a strongly deregulatory deadline, and one that leads to some controversy when the FCC fails to act in time.