Friday, October 12, 2012
A Job Talk Flashback
This week I had the interesting--and by interesting I mean slightly terrifying yet highly productive--opportunity to present my most recent article to my own faculty. It was my first such formal, colleague workshop since my original job talk. The article I presented will be published in Fordham Law Review this spring and is titled, Agencies in Crisis?: An Examination of State and Federal Agency Emergency Powers. In it I make both a quantitative and a normative analysis of agency emergency powers with some surprising and intriguing results. If you are interested, you can read the full abstract after the jump.
I will note, despite how oddly disconcerting it is to present a paper to colleagues I both admire and know well, in the end I found the resulting mentorship invigorating--I recommend the process to all you pre-tenureds out there. And now that I'm done, I'm going to Disneyland! (No, really, I am).
Agencies in Crisis?: An Examination of State and Federal Agency Emergency Powers
Fordham Law Review (forthcoming)
That state and federal agencies have emergency powers, is well known. Much less is known about the process and circumstances under which these powers are exercised--subjects that divide scholars into two theoretical camps. Scholars on one side assert that ample agency discretion in time of need is not only desirable, but it is laudable in the pursuit of efficiency and "deossification" of regulatory action. Scholars on the other side contend that emergency powers are so broadly granted, and representative procedure is so easily abandoned, that the inevitable result is agency unaccountability and aggrandizement. In response, this article presents new empirical research that shows a starling rise in the actual use of federal emergency power (the "good cause" exemption) and extensive use by certain state agencies of their comparable emergency rulemaking powers. After conducting a novel and comprehensive normative analysis, this article concludes by offering an approach to reharmonize the efficiency/public participation trade-off for emergency rulemaking at both the state and federal level: (i) to restrict federal agency emergency powers in language and structure and (ii) to increase agency flexibility at the state level. Discussion of these proposals is particularly timely, as not only has the general level of emergency rulemaking increased, but federal and state administrative agencies must now gird themselves for an increased burden on agencies that regulate health insurance programs. In this arena in particular, the empirical evidence reveals intense tension between administrative efficiency and public participation and a compelling need for an immediate rebalancing of these competing interests.
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