Minimalism and experimentalism in American public law

1、minimalism and experimentalism in american public lawcharles f. sabel* maurice t. moore professor of law, columbia university and william h. simon arthur levitt professor of law, columbia universityminimalism our name for some convergent themes exemplified in the work of bruce ackerman, jerry mashaw

2、, and cass sunstein has been the dominant liberal perspective on public law for several decades. minimalism emphasizes public interventions that incorporate market concepts and practices and that centralize and minimize administrative discretion. it appeals to a conception of democracy that measures

3、 the legitimacy of administrative action by conformity to the previously expressed will of a unitary public. this essay appraises minimalism in relation to a competing liberal view of the administrative state. experimentalism emphasizes interventions in which central government affords broad discret

4、ion to local administrative units but measures and assesses their performance in ways designed to induce continuous learning and revision of standards. it appeals to a conception of democracy that emphasizes collaborative discovery by a congery of stakeholder groups. we fault minimalist scholarship

5、for ignoring an important reorientation in public policy along experimentalist lines in the u.s. and elsewhere since the 1990s. we also argue that experimentalist intervention is a more promising approach in the growing realm of policy areas characterized by uncertainty about both the definition of

6、the relevant problem and its solution. i. introductionii. minimalisma. general themesb. limitations: regulationc. limitations: social welfared. limitations: courtse. limitations: democracyiii. experimentalisma. basic architectureb. regulationc. social welfared. courtse. democracyf. scale and ambitio

7、n: neither bentham nor burkeiv. conclusioni. introductionliberal public law scholarship has been pre-occupied in recent years with rear-guard defenses of the activist state against conservative and libertarian critiques. it has spent less effort distinguishing and appraising competing perspectives a

8、mong those who affirm an ambitious role for the state in regulation, social welfare, and human rights. in this essay, we distinguish and assess two liberal perspectives on the activist state. the first, which we call “minimalism”, appears in the most influential public law scholarship of recent deca

9、des. perhaps its best known expositors have been bruce ackerman, jerry mashaw, and cass sunstein. ackerman, mashaw, and sunstein have not described themselves as sharing a common perspective, and there are important differences among them. but each has elaborated important ideas that converge with o

10、r complement the others to form a coherent and powerful perspective on law, policy, and democracy. their perspective begins with a strong defense of the core values of the new deal and the civil rights movement. however, their view has been, on the one hand, chastened by the post-1960s critiques of

11、bureaucracy, judicial activism, and participatory democracy, and on the other, impressed by the post-1960s re-affirmation of markets as engines of economic efficiency and personal responsibility.“minimalist” is not an entirely satisfactory term for this perspective, the term has been associated prev

12、iously with sunstein. see cass sunstein, one case at a time: judicial minimalism on the supreme court (1999); robert kuttner “the radical minimalist,” the american prospect (april 2009), at 28. we also illustrate minimalism with work by colin diver, goodwin liu, and david super that seems influenced

13、 by and convergent with that of our three primary exemplars. which is in overall aspiration quite ambitious, but the term usefully describes aspects of the attitude of these scholars toward institutions, and in particular, toward official discretion, judicial initiative, and popular participation. t

14、he minimalists would cabin upper tier administrative discretion by forswearing “command-and-control” intervention in favor of small background interventions into existing markets (“nudges”) or the creation of new markets in public goods or bads (for example, school vouchers or tradeable emissions pe

15、rmits). they would cabin lower tier administrative discretion with simple and categorical rules. they would discipline judicial authority through interpretive methodology and proceduralist prudence. and they would limit routine popular participation in government to conventional electoral means. we

16、have both descriptive and normative reservations about minimalism. as a descriptive matter, minimalism fails to take adequate account of a basic set of developments in public policy in the united states, the european union, and elsewhere since the 1990s. as a normative matter, the minimalist approac

17、h seems inadequate to an expanding range of public problems. these are problems characterized by a high degree of diversity and fluidity. or from a slightly different perspective, we could characterize the relevant trait as “uncertainty” in frank knights sense contingency that cannot be known or cal

18、culated actuarially or with formal rigor but can only be estimated impressionistically. frank knight, risk, uncertainty, and profit (1921). in the realm of uncertainty, policy aims cannot be extensively defined in advance of implementation; they have to be discovered in the course of problem-solving

19、. yet, the characteristic minimalist interventions presuppose a strong distinction between the enactment or elaboration of public goals and their administrative implementation. we contrast minimalism to an alternative perspective we call experimentalism. michael dorf and charles sabel, “a constituti

20、on of democratic experimentalism,” 98 columbia law review 267 (1998). a related perspective on similar developments uses the term “new governance”. see law and new governance in the eu and the us (grainne deburca and joanne scott, ed.s. 2006). and the term “management-based regulation” has been used

21、 to designate a subset of the regulatory tools we associate with experimentalism. cary coglianese and david lazar, “management-based regulation,” 37 law & society review 691 (2003). the experimentalist view is developed in a body of recent scholarship, and in the public programs that reflect the pol

22、icy reorientation just referred to. it takes its name from john deweys political philosophy, which aims precisely to accommodate the continuous change and variation that we see as the most pervasive challenge of current public problems. “policies should be experimental in the sense that they will be

23、 entertained subject to constant and well-equipped observation of the consequences they entail when acted upon, and subject to ready and flexible revision in the light of observed consequences,” he wrote. john dewey, the public and its problems 203 (1927). at the same time he rejected standardized b

24、ureaucratic solutions and urged responses that combined respect for local context with centralized structure and discipline. 107-13. aside from education, where he was an active reformer, dewey offered little by way of concrete illustrations of his proposals, but recent reforms in many areas connect

25、 fruitfully with deweys theories. these reforms encourage local or lower-tier autonomy within national frameworks and then attempt to aggregate the lessons of decentralized practice to adapt the frameworks continuously.experimentalism, like minimalism, accepts the basic values of the new deal and ci

26、vil-rights-era liberalism. it accepts the minimalists defense of electoral democracy and of public-regarding deliberation by legislators, administrators, and citizens. it is informed by the minimalists critiques of legislative micro-management, command-and-control bureaucratic administration, and ju

27、dicial activism untempered by a sense of political and institutional constraints. for all these reasons, experimentalism might well be viewed more as a set of friendly amendments to minimalism than as a competing general perspective. but there are important general differences. in particular, the ex

28、perimentalist emphasis on adaptive and contextualizing management is hard to reconcile with the minimalists deep distrust of administrative decentralization. moreover, the experimentalist notion of the judicial role is both more cautious than that of the minimalists with respect to the doctrinal art

29、iculation of rights and more ambitious with respect to the role of the courts in inducing and facilitating the reform of institutions in chronic violation of their responsibilities. and experimentalism has a more expansive notion of the role of popular participation entailed by both democratic value

30、s and administrative efficacy.we elaborate an interpretation and a critique of minimalism in part i. we then sketch and defend the experimentalist alternative in part ii and offer a conclusion in part iii.ii. minimalism and its limitswe begin by describing the convergent themes of minimalism and the

31、n proceed to analyze the limitations of its treatment of regulation, welfare, courts and democracy.a. general themesthe minimalists adopt the new deal premise that markets require regulation to protect commercial stability and other public ends, including some of little moment in the 1930s, such as

32、environmental protection. they reaffirm the (“second”) new deals commitment to social safety nets and the welfare state generally. and they re-affirm the basic principles of the civil-rights-era liberalism that require the federal government to define and enforce basic guarantees of fair treatment a

33、nd political access.moreover, they interpret the legacies of both the new deal and the civil rights era as democratic achievements that demonstrate the possibility of self-government by a mass citizenry and warrant respect as norms laid down by “we the people.” in particular, ackerman has encouraged

34、 lawyers to understand the achievements of the civil rights era, not as just in terms of the doctrinal innovations of the warren court, but as the joint creation of the judiciary, congress, the president, and a mobilized citizenry. bruce ackerman, 2 we the people: transformations (1998); cass sunste

35、in, after the rights revolution (1990). the minimalists also emphasize the possibility of meaningful public-regarding deliberation by officials and citizens. however, democracy for the minimalists is necessarily mostly indirect; it takes place through electoral representation rather than popular par

36、ticipation. ackerman famously distinguishes between “constitutional moments” of heightened popular mobilization, where informal activism interacts intensely with electoral politics and judicial innovation to engage and settle basic issues, and times of ordinary politics, where participation scales d

37、own to voting in general elections. he summons the “constitutional moment” idea to explain the authority of past events, not to inspire mobilization over current issues. ackerman emphasizes that people have limited time and energy for politics except in times of crisis. “the living constitution,” 12

38、0 harvard law review 1737, 1805-06 (2007).ackerman is open to the idea of occasional referenda on specific issues, and he likes the idea of quadrennial “deliberation days” in which citizens can discuss and make recommendations on key issues to elected leaders. bruce ackerman and james fishkin, delib

39、eration day (2004); bruce ackerman, “the new separation of powers,” 113 harvard law review 633, 666-68 (2000). however, such deliberative experiences are rare and engage issues only selectively or at a high level of abstraction. moreover, sunstein adds, popular deliberation is not all its cracked up

40、 to be by radical democrats. serious disadvantages arise from tendencies, on the one hand, toward unreflective conformity (“groupthink”) and on the other, toward unreflective tendentiousness (“group polarization”). both phenomena are mitigated in decision making processes that, instead of striving f

41、or deliberative agreement, impersonally aggregate individual views.cass sunstein, “group judgments: statistical means, deliberation, and information markets,” 80 new york university law review 962 (2005). at the same time, minimalism reflects disillusionment with the new deal practice of vast and va

42、gue delegation of authority to expert bureaucratic agencies. the minimalists join the broad post-war consensus that professionalism and technical expertise are insufficient constraints on bureaucratic discretion: given pervasive discretion, bureaucracies will pursue self- aggrandizement, or the safe

43、ty of self-protective routine, or their own democratically unwarranted ideals of justice. at the top, the problem is that, because legislative specification generates excessively rigid instructions and invites rent seeking by special interests, statutes must afford discretion to administrators. the

44、problem is aggravated by the distinctive separation of powers in the u.s. because federal agencies are typically responsible to congress and the president, administrative officials seek the protection of the one against the caprice of the other, creating tangles of accountability that allow agencies

45、 to operate in substantial autonomy from both. at the bottom, the problem is the limited capacity of senior officials to monitor and control the “street level bureaucrats” welfare case workers, police officers on the beat, classroom teachers - who make on-the-spot, face-to-face decisions that often

46、determine the life chances of citizens. bruce ackerman and william hassler, clean coal/dirty air (1981); jerry mashaw, bureaucratic justice: managing social security disability claims (1985). the minimalists seek to achieve accountability by invigorating the programmatic authority and capacity of th

47、e national government congress, and particularly the president while reducing in inverse measure discretion in the execution of the programs derived in this national deliberation. thus, the minimalists interpret the presidents powers of coordination and oversight expansively and urge that they be gi

48、ven effect by specialized staff in the office of management of the budget, for instance. at his most boldly speculative, ackerman, following woodrow wilson, would have the u.s. take inspiration from british cabinet government, and align the programmatic goals of the executive and legislative branche

49、s by making the president the leader of the majority party in congress. “parliamentarism breeds neutral competence, separationism fosters politicized professionalism.” new separation 701. see also jerry mashaw, greed, chaos, and governance 131-57 (1997). more modestly, the minimalists favor centrall

50、y imposed cost-benefit analysis as a means of disciplining agency rule-making and countering the heuristic biases that distort popular judgments on regulatory matters and can be exploited by special interests. cass sunstein, risk and reason: safety, law, and the environment (2002). at the same time,

51、 the minimalists seek to structure programs to minimize the discretion of the officials who administer them. one approach is to limit public interventions to small “nudges” needed to correct cognitive impairments that hamper market functioning. these micro-interventions typically involve altering a

52、default rule or attending to “choice architecture” by providing information to consumers. so, for example, if people appear to be saving too little (as indicated by post-retirement poverty or expressions of regret), the solution is not to mandate savings, but to change the default rule for tax-subsi

53、dized employer-run savings plans. the current default rule provides that the employer direct a portion of compensation to savings if the employee requests; the new rule would require the employer to contribute to savings unless the employee requests otherwise. if cognitive impairment (status quo bia

54、s, myopia) is the problem, then this kind of “nudge” is the most narrowly tailored intervention, and the fact that intervention reaches only the default rule means that erroneous judgments by the regulators cannot do great harm. error costs are avoided by allowing the employee to opt out. cass sunst

55、ein and richard thaler, nudge: improving decisions about health, welfare and happiness 105-19 (2008).when more extensive intervention is required, the minimalists propose two distinctive and complementary discretion-minimizing lines of reform. one would co-opt key features of markets into public pro

56、grams by creating trading opportunities in public goods like education and public bads like pollution. “cap-and-trade” regimes to reduce environmental pollution are the leading example. under the clean air and clean water acts, polluters have been obligated to reduce their discharges by adopting the

57、 “best available” mitigation technology. as the minimalists have shown, however, determining the “best available” mitigation technology for myriad highly technical functions is just the sort of task to which bureaucracies are unsuited, especially since the information needed for sound decisions is t

58、ightly held by private firms with many incentives to withhold it from regulators.instead of attempting to define feasible technical solutions, the minimalists propose that the regulator issue permits authorizing emissions of specified pollutants in socially acceptable aggregate amounts and then compel emitters to buy such permits in a market where they can be freely traded. firms that can abate emissions cheaply do so, and those with high costs buy the permits. the market thus allocates the burden of a prescribed degree of abatement to the cheapest cost avoiders with a precision