J. B. RUHL, Florida State University College of Law
Email: jruhl@law.fsu.edu
JAMES SALZMAN, Duke University - School of Law
Email: salzman@law.duke.edu

Mandates that agencies solve massive problems such as sprawl and climate change roll easily out of the halls of legislatures, but as a practical matter what can any one agency do about them? Serious policy challenges such as these have dimensions far beyond the capacity of any single agency to manage effectively. Rather, as the Supreme Court recently observed in Massachusetts v. Environmental Protection Agency, "agencies, like legislatures, do not generally resolve massive problems in one fell swoop, but instead whittle away over time, refining their approach as circumstances change and they develop a more nuanced understanding of how best to proceed." In this Article we explore what it means for agencies to whittle away at massive problems. Administrative law scholarship and practice have largely assumed that massive problems are similar to one another, focusing on jurisdiction and instrument choice - who should whittle and which knife they should use. We argue that the nature of the problem - the stick to be whittled - is even more important. What makes some problems massive and particularly difficult to address other than by whittling is the presence of cumulative effects, in particular the spatial and temporal accumulation of economic, environmental, and social impacts from multiple sources. We develop a model to identify how different types of cumulative effects problems can distort or undermine policy responses. Using examples from the fields of environmental and land use law, we provide both theoretical and practical counsel for agency decision makers confronting a massive problem. Doing nothing is not an option for an agency assigned to whittle away at a problem, but having every agency exercise its maximum regulatory power may be even worse. As the Supreme Court suggested, agencies may have no choice other than to whittle, but they can do so more effectively if they focus on the nature of the problem. This article shows how to do so.

MARIANO-FLORENTINO CUELLAR, Stanford Law School
Email: tcuellar@stanford.edu

Criminal justice plays a major role in regulating undesirable conduct. As part of that role, the system relies on deterrence, incapacitation, and the shaping of social norms and preferences in an effort to prevent conduct considered harmful. But that preventive role is routinely misunderstood. This paper rethinks preventive enforcement by training attention on the relationship between criminal law and the institutional realities affecting risk regulation in environmental, health, and national security regulation. First, while not denying a host of problems with the expansive reach of criminal enforcement, the article describes how the structure of criminal enforcement does not draw particularly stable or convincing lines excluding risk regulation from its domain. Distinctions between administrative regulation and criminal enforcement therefore blur on the issue of whether preventing harm and regulating risks are crucial goals, but remain important with respect to matters such as type of sanction available (a commonly appreciated distinction) and type of agency used for enforcement (a less-commonly appreciated distinction).

Second, the analysis trains attention on preventive enforcement in a world where social regulation faces a variety of institutional constraints and where multiple political dynamics drive expansive criminal liability. In such a world, a coercive and costly darker side of criminal justice coexists with the socially-valuable institutional characteristics of law enforcement organizations. As examples from food and drug regulation, environmental policy, and national security demonstrate, the mix of unique sanctions and procedural constraints associated with criminal enforcement have distinct institutional effects on public agencies. Specifically, the criminal justice system is capable of fostering a measure of autonomy that often eludes conventional regulatory agencies, provides incentives for investigative competence, and creates contextual effects in the choice of sanctioning regime, allowing politicians to signal the national state's competence to a potentially skeptical public.

This perspective does not necessarily legitimize all preventive criminal enforcement. Instead, three major implications follow from the analysis. (1) Policymakers should rethink the unfavorable comparisons of law enforcement to intelligence agencies in the national security context. (2) Society should recognize that circumscribing preventive criminal liability has subtle and underappreciated costs for regulatory policy. (3) Scholars should better appreciate the interdependence between legal mandates and the evolution of organizations. By ignoring or minimizing the importance of criminal enforcement's distinctive institutional structure, however, scholars and policymakers have often misconceived the central role of criminal enforcement agencies in advanced industrialized states, providing policy prescriptions that are at best incomplete and at worse perverse and highly problematic.

KARL S. COPLAN, Pace University School of Law
Email: kcoplan@law.pace.edu

Although Article I of the Constitution vests legislative power in the Congress, the lawmaking process in this country has evolved to involve all three branches. Congress enacts regulatory programs, but delegates to the executive branch the task of formulating and legislating the details of implementation through regulations. Once the executive branch agencies have acted, Article III courts routinely step in to review the consistency of these regulations with congressional mandates. In many cases, especially in the case of controversial regulations, the lawmaking process is not complete until judicial review. Entities burdened by such regulations - so called "regulatory objects" - enjoy presumed standing to challenge the scope of agency regulations. Groups of individuals benefited by such regulations enjoy no such presumption of "standing," rather, their right to challenge depends on their ability to establish specific "injury in fact," and the "redressibility" of that injury through judicial decree.

These "injury in fact" and redressibility requirements are most difficult to establish precisely in the context that underlies the modern regulatory schema; that is, regulation of societal risks such as environmental and consumer risks. These regulations seek to protect the public against harms that may have a low probability of occurrence for any given individual, but pose significant risks for society at large, or even for substantial groups of individual citizens. Courts have wrestled with the concepts of "injury" and "redressibility" in the context of probabilistic harms, and have split on the question of whether individuals, or combinations of individuals, can establish the requisites of justiciability based on low-probability events.

Many, if not most, rulemaking challenges by regulatory beneficiaries are brought by public interest organizations. These organizations usually have memberships ranging from thousands to millions of individuals. These organizational plaintiffs fall into the category of "ideological" plaintiffs - parties who invoke the judicial process to establish and enforce public rights for the benefit of many people, who are not primarily motivated by individual gain. Ideological plaintiffs, litigating everything from religion clause issues to consumers' rights to environmental and health concerns, have had mixed success in establishing justiciability in Article III courts. These organizations have been required by Supreme Court doctrine to rely on the individual interests of their members to establish standing.

The traditional test for representative standing requires an organizational party to demonstrate that it has at least one member who would have standing in their own right. Under this approach, no single member of an organization may be able to show a significant "injury" to herself, even though, probabilistically, serious harm to at least one member of a large organization may be nearly certain. This aggregation of the risk of harm lead a DC Circuit panel to reverse itself, and to recognize organizational standing on the part of the Natural Resources Defense Council based on the likelihood that at least two to four of its members would contract skin cancer from exposure to ultraviolet radiation caused by continued use of ozone depleting chemicals, despite the fact that the individual risk for any single member of NRDC was vanishingly small. In such a case the whole of the "injury in fact" may be greater than the sum of the individual parts, and an organization representing thousands or millions of individuals with strong concerns about a regulatory program may well possess the requisite interest in enforcing statutory norms. Literal application of the representational standing requirements, requiring a specific individual member with standing to sue in their own right, would be problematic for such organizations.

Although barely recognized by the courts, the Constitution contains a provisions specifically meant to ensure the right of individuals to associate and seek remedies from all branches of the government, including the judicial branch. The First Amendment guarantees the "right of the people peaceably to assemble, and to petition the government for a redress of grievances." Like the First Amendment guarantees of speech and freedom of the press, this constitutional provision is designed to ensure public representation and participation in the lawmaking process. Constitutional jurisprudence likewise has evolved to ensure maximum input to the political processes that lead to legislation. This is particularly true in the area of First Amendment jurisprudence, where the Supreme Court has recognized the functional importance of political speech to a representative democracy.

This article argues for an expanded notion of organizational standing and "injury-in-fact" in judicial review of agency lawmaking action, based on the functional values implicit in the First Amendment right to assembly and petition for redress of grievances. Judge-made standing doctrine should recognize the difference between litigation to enforce individual rights, where inquiries into individual "injury in fact" and the relationship between an organization and its individually-injured members may be appropriate, and regulatory review litigation that is the ultimate step in the lawmaking process, where full airing of competing views is essential to the judicial review function and the dangers to the constitutional assignment of functions is at a minimum.

ANDREW T. GUZMAN, University of California, Berkeley - School of Law
Email: guzman@law.berkeley.edu

The WTO's dispute settlement system - and, more particularly, WTO panels and the Appellate Body (AB) - are charged with ruling on the consistency of the actions of WTO Members with the obligations imposed by the WTO Agreements. To do so, panelists and AB judges must first determine the standard of review they are to adopt. A more deferential standard will increase the range of activities that the panel or AB will find permissible, while a more stringent standard will narrow that range. With the exception of the Anti-Dumping Agreement, however, neither the Dispute Settlement Understanding nor the specific WTO Agreements themselves provide much guidance regarding the standard of review that should be applied. Article 11, the key provision in the DSU, leaves a great deal to be worked out in litigation.

Identifying the appropriate standard of review requires a determination as to whether the authority to approve certain decisions lies with the Member State or the judicial organs of the WTO. A deferential standard leaves that authority substantially with the state, while a de novo standard gives the panel that authority.

This paper provides an analysis of the costs and benefits associated with more or less stringent standards of review. It argues that WTO-review is desirable primarily because panels and the AB are able to approach disputed issues without bias. The states involved in a dispute, in contrast, have an incentive to view both facts and law in a way that suits their own objectives. Panels and the AB, however, are poorly positioned, relative to states, to assess the legal, cultural, economic, and political context within states. This inevitability means that, in some cases, it is wise to leave greater discretion to the states. The different abilities of Member States and the judicial organs of the WTO allow us to develop a sense of when the standard of review should be more or less deferential. Where a lack of bias is particularly important and where the issues involved are ones in which a panel can be expected to have great expertise, a more stringent standard of review would be appropriate. Where, on the other hand, a case demands detailed knowledge of events or priorities in a state, the case for a more deferential standard of review is stronger.

After elaborating the above perspective on the appropriate standard of review, the paper then provides several examples of the standards that the panels and the AB should adopt, as well as examples of standards they have actually adopted. Among the disputes considered will be those implicating the SPS Agreement; the Anti-Dumping Agreement; the Safeguards Agreement; the national treatment and most-favored nation obligations; and the general exceptions contained in Article XX of the GATT.

SPENCER D. KIGGINS, College of William and Mary - Marshall-Wythe School of Law
Email: kiggs@byu.net

The George W. Bush presidency saw an increase in the partisanship over judicial nominations with the unprecedented use of the filibuster to block the confirmation of majority supported nominations to the federal judiciary. Republicans and Democrats accuse the other party of breaking the nominations process. But is the process itself really broken? Lost in the heated rhetoric over the "broken" appointments process is a discussion of how the nominations process reached its current level of heightened partisanship. Using discourse theory to analyze how the nominations process reached its current state uncovers the solution to the nominations process: the Senate, not the process, needs to reform to allow the process to function as it was designed to function under the Constitution.

ANN PICCARD, Stetson University College of Law
Email: piccard@law.stetson.edu

Federal payments to religious groups that provide social services amount to an improper delegation of the executive power in violation of the non-delegation doctrine. It is proper for the executive branch to involve itself in the provision of social services to needy Americans, but delegating that task to private religious organizations is a misuse of power. The executive would do much better to centralize the administration of federal funds rather than disbursing money to hundreds of small service providers, many of whom require recipients to accept the group's evangelizing in exchange for social services.

RONALD J. KROTOSZYNSKI, The University of Alabama School of Law
Email: rkrotoszynski@law.ua.edu

The U.S. Constitution and the U.S. iteration of constitutionalism have been highly influential in the rest of the world. A written constitution, federalism, judicial review, and a written bill of rights are common characteristics of many constitutions adopted since World War II. In one key respect, however, the U.S. model has not found many takers: separation of executive and legislative powers. The United States maintains a strong separation of legislative and executive powers - a state of affairs that is very unusual, at least when viewed from the perspective of most of Europe, Canada, and a good number of other democracies elsewhere (e.g., Israel, South Africa, Australia, New Zealand). The Constitution itself and the Framers clearly feared that combining executive and legislative powers would be conducive to "tyranny" and should, accordingly, not be permitted. The essay posits that the U.S. concern with separating and dividing executive and legislative power stems from a more generalized skepticism toward government and government institutions than exists in most other democracies. The essay also suggests that, notwithstanding the obvious downside of making government action more difficult by requiring the separate concurrence of the President (or a supermajority of the Congress), this arrangement provides an important structural benefit by facilitating a separate political review of legislative policies. Judicial review is an important and useful way of securing constitutional government; executive review of legislative policies, which may be more wide-ranging than judicial review, also helps to secure good governance.