70 Pages Posted: 1 Oct 2015 Last revised: 17 Dec 2015
Date Written: September 30, 2015
Conventional accounts portray agency design as the outcome of congressional and presidential quests for political control. This perspective aligns with administrative law’s preoccupation with agencies’ external constraints. The main unit of analysis from this point of view is the agency, and the central question is how political principals outside of the agency restrain it. In reality, however, agency actors must also abide by controls internal to the agency: how do these mechanisms arise and what explains their design? For their part, legislative and executive specifications invariably leave organizational slack. Agency heads thus possess substantial discretion to impose internal structures and processes to further their own interests. By and large, however, agency heads have been neglected as important determinants of institutional design. Indeed, like the need for interagency coordination, the bureaucracy requires intra-agency coordination.
This Article seeks to provide a general account of how agency heads, distinct from Congress or the President, manage and operate their organizational divisions. It presents a theory of how administrative leaders use internal hierarchies and procedures to process information in light of their individual preferences and exogenous uncertainties. In doing so, this Article offers a conceptual framework to analyze agency design problems as well as to explain variations in bureaucratic form. Armed with these insights, the analysis then considers some of the resulting normative implications for political and legal oversight. It concludes by suggesting various reforms such as the judicially enforceable disclosure of agencies' internal rule-drafting processes, as well as doctrines further designed to foster transparency and accountability.
Keywords: intra-agency coordination, interagency coordination, information-processing, structure-and-process thesis, team production, agency design
JEL Classification: D20, D23, D73, D78, D80, D81, H10, H11, K19, K23, L22, L23, L32
Suggested Citation: Suggested Citation
Nou, Jennifer, Intra-Agency Coordination (September 30, 2015). 129 Harvard Law Review 421 (2015); University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 735; U of Chicago, Public Law Working Paper No. 548. Available at SSRN: https://ssrn.com/abstract=2667925