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Abstract:
Political economic theories, legal doctrine and political rhetoric frequently assume that overregulation is a pervasive problem requiring remedial measures. Despite the prevalence of these theories, Professor Buzbee demonstrates how a dynamic that he labels the "regulatory commons" problem can create predictable incentives for legislators or regulators to fail to address even broadly perceived social ills. The Article draws on and enriches the "tragedy of the commons" tale, with its usual focus on an underlying common pool resource and conflicts among users of that resource. Professor Buzbee shows how that literature's focus on the underlying resource and multiple resource users neglects incentives for inattention created by the existence of numerous potential regulators.

Where numerous regulators share potential jurisdiction over a regulatory opportunity, and there is a mismatch between those regulators' jurisdictions and the causes and effects of a harmful activity, a regulatory commons dynamic is created. The commons resource here is not the underlying threatened amenity, but the shared regulatory opportunity in a situation of jurisdictional mismatch. Where no regulator has primacy over such a social ill, those seeking a regulatory response will be uncertain where to turn, thereby fragmenting their demands and reducing each regulator's perception of a pressing social need. Potential regulators similarly will find ills encountering a regulatory commons dynamic to be unattractive opportunities for political investment and credit claiming. Regulators are unlikely to be blamed for a problematic status quo, will be unable to control other regulators, and if they choose to act may create ineffective regulation due to others' actions. Furthermore, drawing on public choice scholarship and behavioral law and economics, this Article shows how deviation from the status quo baseline will be especially disfavored in the setting of a dispersed social ills and fragmented regulatory frameworks. Professor Buzbee then reviews prominent overregulation theories, many drawn from public choice scholarship, and shows how such overregulation assumptions are reflected in contemporary administrative law jurisprudence. Propensities to ignore dispersed social ills created by the regulatory commons dynamic can be reconciled with overregulation theories. One can anticipate intermittent and sometimes stringent regulation, often created after events galvanize public perceptions of crisis. Stringent regulation, however, should not be mistaken for comprehensive regulation. The Article closes by discussing implications of the regulatory commons dynamic and offering means to surmount it.

Regulation, commons, regulatory gap, public choice, behavioral law and economics

Abstract:
If the federal government has constitutional power to address a social ill, and hence has power under the Supremacy Clause to preempt state, local, and common law regimes, is there a principled rationale for distinguishing federal standards that set a federal floor or ceiling? At first blush, the two appear to be mere flip sides of the same federal power: The choice of a floor reflects a goal of minimizing risk, while ceilings reflect concern with excessively stringent regulation.

This Article argues, however, that these two regulatory choices are fundamentally different in their institutional implications. Floors embrace additional and more stringent state and common law action, while ceilings are better labeled a "unitary federal choice" due to how they preclude any other regulatory choice by state regulators and also eliminate the possibility of the different actors, incentives, and modalities of information elicitation and proof that common law settings provide. Advocates of free markets respond that this is precisely the idea - regulatory certainty is enhanced with a unitary federal choice, allowing manufacturers to plan with confident knowledge of the regulatory terrain, unbuffeted by an array of uncoordinated actors.

Debate over floors versus ceilings was, until recently, largely hypothetical, due to the rarity of federal imposition of ceilings. During the past year, however, in settings ranging from product approvals to regulation of risks posed by chemical plants to possible climate change legislation regarding greenhouse gases, legislators and regulators have embraced the broad, preemptive impact of unitary federal choice preemption. The federal action regarding such risks would be the final regulatory choice. But under what theory of regulation and legislation can one be confident that placing all decisionmaking power in one institution at one time will lead to appropriate standard setting? In fact, advocates of risk regulation, "experimentalist regulation" scholars, and skeptics about the likelihood of public-regarding regulation all call for attention to pervasive risks of regulatory failure. Agency and legislative inertia, information uncertainties and asymmetries, outdated information and actions, regulatory capture, and a host of other common regulatory risks create a substantial chance of poor or outdated regulatory choice.

Considering these pervasive risks of regulatory failure, the principled distinctions between floor and ceiling preemption become apparent. Vesting all decisionmaking power in one institution can freeze regulatory developments. Unitary federal choice preemption is an institutional arrangement that threatens to produce poorly tailored regulation and public choice distortions of the political process, whether it is before the legislature or a federal agency. Floor preemption, in contrast, constitutes a partial displacement of state choice in setting a minimum level of protection, but leaves room for other actors and additional regulatory action. Floors anticipate and benefit from the institutional diversity they permit. This Article closes by showing how the institutional diversity engendered by retaining multiple layers of law and regulatory actors creates conditions conducive to reassessment and adjustment of rigid or outdated regulation.

administrative law, constitutional law, preemption, supremacy clause, standard setting, floor, ceiling, risk regulation, common law action, unitary federal choice

Abstract:
If the federal government has constitutional power to address a social ill, and hence has power under the Supremacy Clause to preempt state, local, and common law regimes, is there a principled rationale for distinguishing federal standard setting that sets a federal floor or ceiling? At first blush, the two appear to be mere flip sides of the same federal power, only distinguished by their different regulatory preferences for a world of minimized risk (with floors) or higher levels of risk (with ceilings). This Article argues, however, that these two central regulatory choices are fundamentally different. Floors embrace additional and more stringent state and common law action, while ceilings actually are better labeled a "unitary federal choice" due to how they preclude any more lax or more stringent action as well as the different actors, incentives, and modalities of information elicitation and proof of common law settings. Advocates of less hindered markets respond that this is precisely the idea-regulatory certainty is enhanced with ceiling preemption, allowing producers of goods to plan with confident knowledge of the regulatory terrain, unbuffeted by an array of uncoordinated actors.

This debate was, until recently, largely hypothetical. Recently, however, in settings as diverse as product approvals, to regulation of risks posed by chemical plants, to possible legislation regarding greenhouse gases contributing to climate change, legislators and regulators have suggested or asserted such a broad, preemptive impact. The federal action, whatever it is, would be the final regulatory choice. But under what theory of regulation and legislation can one be confident that locating all decisionmaking power in one institution at one time will lead to appropriate standard setting? In fact, advocates of risk regulation, "experimentalist regulation" scholars, and, at the other end of spectrum, skeptics about the likelihood of public-regarding regulation, all call for attention to pervasive risks of regulatory failure. Agency and legislative inertia, information uncertainties and asymmetries, outdated information and actions, regulatory capture, and a host of other common regulatory risks create a substantial chance of poor or outdated regulatory choice.

Considering these pervasive risks of regulatory failure, the principled distinctions between floor and ceiling preemption become apparent. Vesting all decisionmaking power in one institution can freeze regulatory developments. Unitary federal choice ceiling preemption is an institutional arrangement that threatens to produce poorly tailored regulation and public choice distortions of the political process, whether it be before the legislature or a federal agency. Floor preemption, in contrast, constitutes a partial displacement of state choice in setting a minimum level of protection, but leaves room for other actors and additional regulatory action. Floors anticipate and benefit from the institutional diversity they permit. This Article closes by showing how the institutional diversity engendered by retaining multiple layers of law and regulatory actors creates conditions conducive to reassessment and adjustment of often rigid or outdated regulation.

administrative law, constitutional law, preemption, Supremacy Clause, standard setting, floor, ceiling, risk regulation, common law action, unitary federal choice

Abstract:
Since 1995, the United States Supreme Court has applied a new form of rigorous judicial scrutiny in assessing the constitutional limits of the Commerce Clause, a provision that long has functioned as the central authorization of congressional power. As critics on and off the bench have noted, the Court has advanced its conception of federalism by requiring that the regulated activity itself be economic or commercial in nature. A crucial aspect of the Court's approach that has received less attention is the prior step of selecting the relevant activity for constitutional analysis. Legislation can be viewed from a variety of different perspectives, and the choice of vantage points can be critical in determining the requisite commercial nexus. In the wake of the New Deal, the Court upheld legislation if it had a commercial connection when viewed from any perspective. This Article argues that in a break from a half century of settled jurisprudence, the Court recently has insisted on selecting a single perspective as determinative. This approach, which we term "unidimensional," relocates substantial discretion from Congress to the judiciary. Drawing on the insights of recent scholarship on statutory interpretation, we illuminate the flaws in the Court's unidimensional approach. Legislation implicates multiple motives, targets, beneficiaries, and effects. For the Court to pick out a single element as dispositive constitutes a groundless form of reductionism. Here, as in other aspects of its recent jurisprudence, the Court focuses on the common-law rights holder as the fulcrum of analysis. This framework tilts the doctrine against regulation, as it inevitably casts the state as a suspect interloper. Lower court cases evidence the confusion that the Court's narrow commercial activity analysis has generated. In place of this flawed, unidimensional approach, we offer a "legislativist" framework for Commerce Clause cases. Under the legislativist method, the text of the legislation guides the judicial identification of the relevant activities for purposes of Commerce Clause scrutiny. This approach retains meaningful judicial oversight, while avoiding the arbitrary usurpation of congressional authority inherent in the Court's current jurisprudence.

constitutional law, federalism, regulation, statutory construction

Abstract:
This chapter reexamines the Supreme Court's recent Laidlaw decision, placing the decision and statutorily authorized "citizen suits" in historical and jurisprudential context. Relying substantially on interviews with lawyers on the case and clients, the chapter reviews the strategic decisions leading to the Supreme Court's unexpectedly strong reaffirmation of citizen suit standing in Laidlaw. The chapter traces the Court's uncertain standing doctrine shifts, showing how, since the fragmented 1993 Lujan decision, members of the Supreme Court adopted substantially different analytical approaches to standing. For Justices Scalia and Thomas, and perhaps a few other justices, constitutional standing analysis required judges to find a sufficiently tangible injury. Other Justices, most notably Justices Stevens, Ginsburg, Breyer, Souter and Kennedy, viewed standing through a more statutory lens. The universe of interests, goals and procedures set forth in an underlying statute would, for these justices, influence standing analysis. During the period leading up to the Laidlaw decision, lower courts and the justices themselves struggled to render standing jurisprudence coherent. Several appellate court decisions, including the Fourth Circuit's Laidlaw decision, adopted expansive reads of Lujan that threatened to destroy the viability of statutorily authorized citizen suits. The Supreme Court's Laidlaw ruling, however, strongly embraced a more deferential approach to standing and ensured the viability of citizen suits. Nevertheless, the case's tortuous and long litigation path also reveals just how difficult and often unrewarding citizen suits have become. The chapter closes by assessing the future of citizen suits and standing challenges.

Standing

Abstract:
In reviewing the constitutionality of federal legislation, the United States Supreme Court recently has scrutinized the underlying "legislative record." Since 1995, the United States Supreme Court has invalidated six federal statutes based at least in part on its scrutiny of the underlying legislative materials. Board of Trustees of the University of Alabama v. Garrett represented the full emergence of this rigorous judicial scrutiny, which we term "legislative record review." In Garrett, the Court broke with seventy years of precedent by striking down legislation based solely on the inadequacy of the record developed by Congress. Before Garrett, some commentators had noted and even endorsed the Court's new approach to judicial review of legislation. These scholars, however, had failed to explore the flaw at the center of legislative record review. As we demonstrate, the very concept of "the legislative record," as employed by the Court, is a fiction. The nature of the legislative process belies the existence of comprehensive explanatory materials. The notion of a legislative record, as used by the Court, constitutes an inappropriate importation from different institutional settings of the expectation that a written record will justify a legal judgment.

With reference to the insights of administrative law and its agency record review jurisprudence, we argue that reliance on the concept of a legislative record is unworkable and illegitimate. In defiance of separation of powers principles, legislative record review actually embodies more rigorous judicial scrutiny than commonly employed even in "hard look" review of administrative action. The Court's new parsing of legislative statements and submissions is also in substantial tension with typical textualist rejection of recourse to legislative history. Having identified the flaws at the heart of legislative record review, the Article then traces its origins to judicial suspicion of congressional motives. The adoption of this mode of review reveals a newly ascendant judicial distrust of Congress. While courts certainly have a role in reviewing the basis of congressional action, we argue that this kind of review of ostensible factual predicates constitutes an unnecessary and ill-defined intrusion into the constitutionally conferred powers of Congress. In conclusion, we propose various means by which Congress and litigants might create and defend legislation so as to survive the rigors of legislative record review.

Abstract:
This essay discusses two innovations in federalism and regulation, using the two to illuminate the merits of each other. These two innovations are recent aggressive political assertion of ceiling preemption and experimentalist agency modes that move away from more rigid forms of regulation. Using these two innovations to illuminate each other, the article concludes that the clashing and interaction of actors and institutions under federal regulatory schemes utilizing cooperative federalism structures and floor preemption, which set minimum required federal protections, provide an array of regulatory benefits lost with complete recent ceiling preemption.

The article acknowledges that fully preemptive federal standards can have their place, both as a matter of constitutional power and logical regulatory design. In statutory and regulatory regimes, however, Congress and agencies have for many years overwhelmingly manifested a preference for regulatory overlap and interaction, allowing state and local governments, as well as common law regimes, to surpass the stringency of federal regulation or provide additional protections through different strategies. Fully preemptive federal standards, especially in their recently asserted form of ceilings operating as a unitary federal choice, pose an array of institutional risks. The regulatory experimentalist literature highlights their problematic implications. But examination of preemption dynamics and incentives also illuminates potentially aspirational elements of experimentalism that may be unrealistic in the risk regulation setting. Federal setting of regulatory floors in cooperative federalism settings offers what can be viewed as perhaps a second best variant of experimentalism. Under cooperative federalism regimes, these more standard regulatory floors are more rigid than the fluid rolling rule approaches that experimentalists tout. Nevertheless, such regulatory floors provide much of the interaction and room for innovation that experimentalists champion. In the risk regulation setting, the messy clashing and interaction of real-world multilayered regulatory federalism creates incentives and hence markets for improvement and innovation that may not exist with more idealized forms of experimentalist regulation.

Federalism, Risk Regulation, Produtcs Liability, Climate, Greenhouse, Preemption, Common Law, Floors, Ceilings, Race to the bottom, Experimentalism, Environmental, Administrative agencies, Deference, Clear statement, Regulatory compliance defense, innovation

Abstract:
Environmental policy analysts sometimes make broad claims about federal and state environmental roles based on isolated, anecdotal examples. This essay suggests that policy analysts should seek to distinguish events that are the result of particular historical opportunities and context, from propensities and incentives that are more stable and predictable under current forms of environmental federalism. Greater attention should be paid to the array of regulatory actors and regulatory modalities. Activity by one actor in one modality does not necessarily reveal much about "the state's" proclivities. This essay suggests that recent state enforcement activism proves little about inherent state environmentalism, but instead reflects political opportunities created by a shift on the federal level towards a more anti-environmental position. Rather than seeing recent state actions as providing support for the elimination or reduction of the federal environmental role, this essay argues that these recent state actions reveal once again the benefits of regulatory overlap, cooperative federalism structures, and redundant enforcement mechanisms. These aspects of the American system of environmental federalism reduce the risk of regulatory underkill that can result from failures to address environmental ills, as well as failures adequately.

Regulation, Environmental Law, Federalism

Abstract:
An unavoidable problem for growing regions is the mismatch of smaller, more parochial local governments and regional dynamics, harms, and social and infrastructure needs. The implications and challenges of regulatory fragmentation, however, are significant for regulatory challenges of all types, especially in areas of overlapping and intertwined regulation such as environmental law. To illuminate these fragmentation conceptions and implications, this paper draws on longer-term research regarding the 1971-85 battles over the proposed New York Westway highway and park project. After reviewing the story of Westway's defeat due to its environmental impacts and a series of legal and political challenges, the article suggests a four-part typology of regulatory fragmentation. Regional ills and projects tend to encounter four types of regulatory fragmentation: temporal, horizontal, vertical, and institutional. This paper then seeks to reconcile two seemingly clashing views about the implications of regulatory fragmentation. Scholars writing from a law and economics perspective suggest in several recent works that multiple regulators sharing actual or potential regulatory turf will tend to create a drag on or stop activities that would be in the collective interest. A seemingly opposite view asserts that in a setting of fragmented governance, where neither citizens nor potential regulators view any person or institution as having regulatory primacy over a particular social ill, "regulatory commons" problems arise, creating incentives for failures to address such shared but dispersed regulatory harms or opportunities. This paper suggests that these two seemingly disparate views actually can be reconciled. Rather than fragmentation creating either one result or another, as might at first appear to be the case, ubiquitous regulatory fragmentation creates a continuum of institutional proclivities and incentives. Those proclivities are heavily dependent on the modality of government action. The article closes by analyzing potential responses to fragmentation.

regulatory commons, regulatory fragmentation, environment, wetlands, regional growth, institutions

Abstract:
Current debates over federalism, especially preemption, center on the merits of legal structures that rely on a sole or preemptive federal regulator versus strategies that retain roles for multiple regulatory actors, especially federal, state and local actors sharing concurrent and interacting authority. Many such preemption and federalism battles arise out a clash between proponents of increased protection from risk and anti-regulatory preferences of industry and sometimes aligned political and regulatory officials. In a recent major policy change late in the Bush Administration, many federal agencies and supportive industry asserted that agency actions had broad preemptive effects on state and local regulatory powers and common law regimes. These claims usually followed no advance opportunities for comment or open, reasoned agency decisionmaking. After reviewing this policy shift, the article discusses why private and public sector actors seldom look past immediate rewards and risks, and links that discussion to reasons regulatory schemes retaining concurrent regulatory authorities may lead to more protective, long-term perspectives than regimes utilizing a unitary regulator.

The article then turns to a much neglected aspect of judicial review of preemption claims: How should courts review the factual and policy underpinnings of claims that federal regulatory actions should preempt? Through analysis of federalism and preemption jurisprudence, as well as administrative law doctrine that rewards transparency, accountability, and constrained discretion, this article argues that courts should explicitly embrace “preemption hard look review.” Court should subject agency claims of preemptive power and effect to close analysis to see if such an outcome is well justified by underlying facts and policy claims. Where agencies assert such power following transparent and participatory regulatory process resulting in well reasoned justifications, court should grant agencies greater policymaking latitude. The article shows how explicit judicial embrace of preemption hard look review would constitute, at most, only a modest doctrinal shift in preemption jurisprudence, but would further important federalism and administrative law values. By prodding agencies to make preemption claims in an open, transparent and participatory manner, such rigorous hard look review would also improve the odds that agency actions would be consistent with express public-regarding purposes in most laws, and thus would be likely to further stewardship, sustainability and intergenerational equity goals.

preemption,federalism, administrative law

Abstract:
This article explores the implications of Bennett v. Spear for public law standing. The unanimous Bennett Court, in its opinion by Justice Scalia, applies slightly reformulated but ultimately manipulable "zone of interests" criteria; the opinion also utilizes a new framework for standing analysis under Article III of "procedural rights" claims. The Bennett Court looks for case- specific allegations that an alleged procedural misstep "alters the legal regime" by having "coercive" and "virtually determinative effect." This new framework arguably resolves a second (but unbriefed to the Court) split in the circuits over standing for "procedural rights" plaintiffs. Bennett's new framework threatens to turn the overlapping "redressability" and "traceability" standing criteria into a substantial hurdle for plaintiffs claiming an agency procedural misstep, and undercuts the instructions provided by the Court in Lujan v. Defenders of Wildlife. Bennett gives no apparent weight to implicit legislative valuation of procedures. Professor Buzbee argues that Bennett is a problematic decision that can and should be narrowly construed to give appropriate heed to legislative judgments about the importance of procedures associated with a regulatory goal. The article closes by arguing that half of Bennett's new redressability-traceability test--the "alters the legal regime" language--offers a means to harmonize disparate standing treatment of plaintiffs alleging reverse discrimination and more typical administrative law or environmental law claims, and also could ensure that courts play a role in policing agency actions under diverse initiatives designed to enhance regulatory flexibility.