Blood Rights

'Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation' by Kristin A. Collins in (2014) 123 Yale Law Journal 2134 comments

The citizenship status of children born to American parents outside the United States is governed by a complex set of statutes. When the parents of such children are not married, these statutes encumber the transmission of citizenship between father and child while readily recognizing the child of an American mother as a citizen. Much of the debate concerning the propriety and constitutionality of those laws has centered on the extent to which they reflect gender-traditional understandings of fathers’ and mothers’ respective parental roles, or instead reflect “real differences” between men and women. Based on extensive archival research, this Article demonstrates that an important yet overlooked reason for the development of restrictions on father-child citizenship transmission was officials’ felt need to enforce the racially nativist policies that were a core component of American nationality law for over 150 years. At formative moments in the development the laws governing jus sanguinis citizenship – what is now called derivative citizenship – gender- and marriage-based domestic relations laws were enlisted by administrators, judges, and legislators to deny the citizenship claims of nonwhite children, especially those who were excludable under the race-based immigration and naturalization laws.

For those who study citizenship and immigration law, Illegitimate Borders illustrates the concrete and enduring ways that ideas concerning family, gender, and race have shaped the rules that govern formal membership in the American polity. For legal historians and scholars interested in the development of the administrative state and nation building, this article provides a window onto the central role administrators played in crafting American nationality law. For family law scholars, Illegitimate Borders highlights the ways that laws regulating illegitimacy – long used to create and maintain racial hierarchies within the American polity – were regularly used to shape the racial composition of the polity as well. Finally, for constitutional law scholars, the history charted here undermines the view that gender-asymmetrical jus sanguinis citizenship laws reflect natural and inevitable means of regulating parent-child derivative citizenship – an understanding that has been embraced by a majority of the Supreme Court. Instead, the historical sources reveal that gender-asymmetrical citizenship laws are the product of choices made by officials and shaped by contemporary norms concerning gender, parental roles, and – as illustrated in great detail – the official imperative to enforce race-based nationality laws. To speak of gender-based distinctions drawn in modern citizenship law as inevitable obscures their origins and elides the ways that such laws continue to play an illiberal role in the practice and politics of citizenship.

'Citizens As Customers' by Wolfgang Streeck in (2012) 75 New Left Review comments

Four decades ago, in a landmark Public Interest article titled ‘Public Goods and Private Status’, Joseph Monsen and Anthony Downs took up the question of why American society was, in the phrase coined by John Kenneth Galbraith, ‘privately rich but publicly poor’. The authors were not convinced by what they took to be the received explanation at the time: the ‘clever and nefarious advertising techniques’ used by large corporations to manipulate consumers, so that they would ‘buy private goods and services they do not relatively need or want’. Instead, Monsen and Downs suggested ‘a more fundamental factor’ was at work, accounting for the differential allocation of goods between the public and private sectors: a ‘desire’ on the part of consumers ‘for emulation and differentiation’, driving them ‘to create visible distinctions between large groups and classes, and, within such groups, more subtle distinctions of individuality’. Drawing on Veblen’s notion of conspicuous consumption in The Theory of the Leisure Class, as well as 1960s explanations of status-seeking consumer behaviour in American society, Monsen and Downs described this desire as ‘an intrinsic part of man’s character, evident to at least some degrees in all societies, past and present’—‘so fundamental that it can be considered a “law” of human nature.’

Why should this ‘law of consumer differentiation’, conceived as something close to an anthropological constant, affect the relative allocation of resources between the private and the public spheres of a modern political economy? The central point of Monsen and Downs’s argument is that what they call ‘government goods’—those produced or distributed by public authorities—are ‘designed with an eye to uniformity’. The standardization of army rifles is the most evident case in point:

Such goods are easier to produce and administer by the bureaucracy, and they accord with the ideal of equality which underlies the distribution of government goods. But by that very nature, such goods cannot be used easily for status differentiation which is a major function of most goods in advanced industrial societies.

In what follows, I shall make use of Monsen and Downs’s productive distinction between these two modes of provision, with inherent capacities favouring different kinds of goods: one mode is public and collective, administered by state authorities; the other is private and individual, mediated by commercial markets. But rather than comparing the two modes synchronically, or examining them within the eternal property space of economic anthropology, I will take a longitudinal view on the development of their mutual relationship. Moreover, instead of anchoring product diversification in a timeless human disposition towards status-seeking, I will relate it to a particular mode of utility maximization favoured in the transition from a need-supplying to a want-supplying economy, from sellers’ to buyers’ markets, and from poor to saturated to affluent societies, which was getting underway around the time (1971) that Monsen and Downs’s article appeared. In this sense, I will suggest a return to the ‘institutionalist’ explanation for the starvation of the public sphere, which Monsen and Downs rejected in favour of their human-nature theory.

Sorry and another OPCA incident

A perspective from the New York Times on the Facebook research ethics problem

this is hardly the first time Facebook has apologized for its behavior. Over its 10-year history, the company has repeatedly pushed its users to share more information, then publicly conceded it overstepped if an upset public pushed back.

Take, for example, when Facebook first introduced the news feed to the public in 2006. It was the first time a running stream of the actions you took on was were visible to your friends. Users were alarmed, and Mark Zuckerberg, Facebook’s chief executive, took to his profile page to personally apologize.

“We really messed this one up,” he wrote. The company introduced a new set of privacy controls to go with Mr. Zuckerberg’s apology.

Little more than a year later, Facebook was at it again. The company introduced a new product, Beacon, that, when connected to partner web sites like eBay or Fandango, would publish actions taken on those third-party sites back to Facebook for friends to see. Some Facebook users said this violated their privacy, and were irate enough to eventually file a class-action lawsuit.

Again, Mr. Zuckerberg was sorry.

“We simply did a bad job with this release, and I apologize for it,” he wrote on his personal Facebook page. Facebook introduced a way to opt out of Beacon soon after, and eventually dropped the service entirely.

Then in 2009, Facebook changed its privacy settings for users, in what the company characterized as an effort to simplify a set of complicated controls. Some digital rights advocacy groups, however, claimed that the simpler controls tacitly pushed users to share even more information about themselves than before. Users were forced to share their information, for instance, with apps connected to their Facebook accounts.

Six months and many complaints later, Mr. Zuckerberg said he was sorry (sort of) — this time on the editorial page of The Washington Post.

“Sometimes we move too fast,” Mr. Zuckerberg wrote. “We just missed the mark.” Facebook introduced another set of privacy changes to remedy the older, unpopular set.

One of the company’s biggest concessions came in 2011, in the form of a settlement with the Federal Trade Commission, after the agency said Facebook had deceived consumers on its privacy practices.

“I’m the first to admit that we’ve made a bunch of mistakes,” Mr. Zuckerberg wrote, while also noting a batch of privacy “improvements” Facebook had introduced over a period of two years. “We can also always do better.”

In ACM Group Ltd v Jenner [2014] QMC 7 - involving an A4V ('Acceptance for Value') pseudo legal claim - the Magistrates Court of Queensland comments 

The case highlights the tension between the fundamental principle that all parties have unobstructed access to civil justice regardless of whether or not they are legally represented (Tomasevic v Travaglini (2007) VSC 337 at [84]), on the one hand, and the need to protect members of the public from unscrupulous and unqualified people offering unsatisfactory legal services, on the other. 

The judgment states 

 [17] The defendant purports to invoke unknown principles and spurious “higher laws” to override or avoid normal commercial obligations. Through Ms Wales, Ms Jenner apparently claims the truly remarkable ability to transform a letter of demand into a cheque or other bill of exchange which is then payable by a non-entity from non-existent funds. 

[18] On her case the non return of the A4V notice within 72 hours of receipt “provided evidence of the acceptance by the plaintiff of the money order and satisfaction of the liability” (par 9(c)- (d)). 

[19] A “certified agreement” (see page 39 of APB 1) is also relied upon to prove a binding agreement “...by all parties that the plaintiff’s claim of a liability against the defendant was discharged” (par 9(j)(l)). 

[20] There is no evidence of any financial entity known as “Treasury AUSTRALIA” and no reason to believe that Ms Jenner has contractual or other recognised legal right or authority to compel enforcement of the “A4V notice” on presentation. 

[21] The A4V notice and the “certified agreement” are unilateral “quasi-agreements” unsupported by valuable consideration. Neither is binding on the involuntary party. The documents do not create formal legal relations or contractual consequences with or for anyone. 

[22] In fact despite its misuse of Latin maxims and bizarre make believe legal babble the A4V notice is not worth the paper it’s written. 

[23] The plaintiff claims that Ms Wales is an emerging breed of vicarious vexatious litigants known in Canada as organised pseudo legal commercial argument litigants (OPCA Litigants) characterised and distinguished by the use of muddled legal concepts and terms calculated to frustrate the legitimate legal rights of others and disrupt court proceedings (See Meads v Meads [2012] ABQB 571 per Rooke ACJ at [1]). 

[24] OPCA litigants, according to Rooke ACJ, belongs to a group unified by specific but irrelevant formalities and language they appear to believe to be (or portray as) legally significant and “...will only honour (agreements and legal obligations) if they feel like it. And typically they don’t” (Meads at [4]). 

[25] According to A4V mythology OPCA adherents are associated with the secret government bank account with millions of dollars in it which can be unlocked and accessed by special stamps and notations that convert the original document into a bill of exchange drawn on the secret government account in favour of a nominated payee. 

[26] The A4V document here closely resembles those used by OPCA Litigants in Canada in “money for nothing schemes” discussed in Meads at [199] – [244]. 

[27] As Counsel for the plaintiff points out the defence and counter claim here also bear a striking similarity to the OPCA modus operandi generally and, in particular, to the uses of unilateral agreements (eg A4V notice) and the fiction of quadruple counter claims (see Meads 473, 531, 483). 

[28] A similar situation arose in Boughan v HSBC Bank Australia Ltd [2009] FCA 1007 where a litigant asserted an implied agreement that the account was “settled and closed” [23-29] because a bank officer did not sign and return a document within a specified time. 

The correct reference in [28] is Vaughan v HSBC Bank Australia Ltd [2009] FCA 1007.

[29] Graham J [in Vaughan] held:

It is apparent that the applicant’s case against the bank well and truly earns the description of being unmeritorious and unsustainable. The applicant has no recall or prospect of successfully prosecuting any part of his proceeding against the bank. In relation to his claim for summary judgment against the bank it is totally without foundation, it proceeds on the premise that, because the bank did not reply to his rather odd communication to it, by its silence the bank agreed to make a gift to the applicant of $666,000. 

[30] The A4V concept was also reviewed and rejected in Underworld Services Ltd v Money Inc [2012] ABQC 327.

Pragmatism and Posner

'Radical Pragmatism' Michael Sullivan and Daniel J. Solove in Alan Malachowski (ed) The Cambridge Companion to Pragmatism (Cambridge University Press, 2013) comments

“[P]ragmatist theory of law is, like much pragmatist theory, essentially banal.” So wrote Thomas Grey at the dawn of pragmatism’s renaissance in legal theory. Even Richard Rorty, the philosopher frequently credited with reviving pragmatism concurs. Richard Posner could not agree more. For well over a decade, Posner has been the leading proponent of legal pragmatism. He proclaims that “pragmatism is the best description of the American judicial ethos and also the best guide to the improvement of judicial performance—and thus the best normative as well as positive theory of the judicial role.” For Posner, pragmatic adjudication boils down to “reasonableness”; it is “[n]ebulous and banal, modest and perhaps even timorous — or maybe oscillating unpredictably between timorous and bold.” 

Following the classical pragmatists, many contemporary pragmatists reject philosophy as a method for securing unshakeable foundations for knowledge. Yet these pragmatists part ways with classical pragmatism by rejecting the possibility of developing a thicker theory of the good and viewing pragmatism as a thin non-theoretical method of approaching issues. On this account, pragmatism is a relatively commonplace set of ideas and should hardly be shocking to the contemporary mind. According to Posner, “pragmatism is more a tradition, attitude, and outlook than a body of doctrine”; it is more of a “mood” than a substantive philosophy. Posner insists that pragmatism has “no inherent political valence.” Likewise, Rorty contends that pragmatism “is neutral between alternative prophecies, and thus neutral between democrats and fascists.” Under this view, pragmatism generally leads to cautious common-sense policies. It is far from radical and unsettling, for it is too grounded in practice and too lacking in substantive value commitments to be otherwise. 

In this chapter, we contest this account of pragmatism held by many neo- pragmatists and articulated most directly by Posner. We offer a thicker account. Pragmatism does indeed have a political valence. It has substantive values. And, far from being banal, it is radical at its core.

The authors go on to comment that

As developed by classical pragmatists like Dewey, pragmatism is not neutral. Of course, this account of pragmatism does not imply a specific theory of political philosophy. But it does have valences. In order to ask what political future does pragmatism recommend?, we must also ask in what political culture can pragmatic forms of inquiry about the political future best be carried out? The answer to this latter question leads us in the direction of what we call a “general democratic culture.” First, pragmatism subjects existing institutions and the status quo to ongoing critique, since it recommends that we critically examine our ends. When one commits oneself to a thoroughgoing use of pragmatic method, certain conclusions are ruled out in advance, such as a politics informed by supernatural or transcendental ideals, or a politics that arbitrarily excludes particular viewpoints. Supernaturalism and absolutism conflict with the general approach of the pragmatic method, which is to subject our ideals, ends, and conclusions to the test of experience. Indeed, it is this commitment that in part motivates Posner’s rejection of philosophical theory, for much philosophical theory has traditionally harbored ideological commitments that were then foisted upon the unaware from the altar of theory. But the fear of ideology can lead to cures that are worse than the disease. Although Posner claims to adhere to a neutral pragmatic method without political valences, the results of his application of this method are deeply ensconced in ideology. Posner’s pragmatism does have a particular political valence, one that favors the dominant ends of the status quo. The result is that while Posnerian pragmatism rejects supernaturalism and absolutism, it starts with an unquestioning acceptance of current institutions. Ironically, it winds up in a similar posture to supernaturalism and absolutism, for in each of these instances certain issues are insulated from critical scrutiny. 

Second, under Deweyan pragmatism, democracy depends upon deliberation. Democratic deliberation is the way we establish shared meanings and determine the ends of a community. It is important to distinguish between individual and community ends. Individuals can readily choose their own ends, but for communities, the task is more difficult. This is because a community’s ends depend on the identity of the community, which must be ascertained by examining the history of that community and soliciting input from across the community as a whole. Examining community identity leads us to ask: Who are we becoming? How are we growing? Do we want to continue in this fashion? Who do we want to become? There is no movement into the future that does not presuppose a judgment about the past and present. Pragmatists therefore need to encourage public deliberation about our identity since there is no way to determine what is better or worse without reference to that identity. 

Since community rather than individual ends are at issue, dialogue becomes essential. Community ends are determined collectively, and doing so requires communication. This dialogue does not need to be an academically sophisticated discourse; rather, pragmatism merely requires that people participate in a discussion of the meaning of ends understood in the context of present circumstances. These are philosophical discussions not because they take place in universities, but because they ask about the good life under present social conditions. A pragmatic approach to democracy is one that understands itself as part of existing political conversations about the nature and ends of the community. 

Third, since experience is social and meanings are constituted through communication, efforts to describe experience and formulate an account of social problems must seek contributions from a wide range of participants in social experience. Under Dewey’s theory, participation is a highly valued end. For Posner, in contrast, participation has no value unless it can achieve results that benefit one’s self-interest. Beyond being valuable in and of itself, participation is valuable instrumentally as well. According to Dewey, self-government “is educative,” for it “forces recognition that there are common interests.” Thus, the purpose of democracy is not to take the people as they are. The value of democratic participation is to educate people, to enable them to realize common interests and see themselves as part of a community. Dewey’s experimental method does not simply consist of presenting hypotheses; rather, it requires testing proposals to resolve present problems by seeing how they work in experience. Interpreting the social meaning of a particular set of experiments requires recourse to the larger community. We increase our chances of finding effective solutions to social problems by looking to a broad range of contributors. Therefore, in contrast to Posnerian pragmatism, the account of pragmatism we offer openly acknowledges that it is not completely neutral. Although pragmatism does not point to precise resolutions for our debates, it does send us in a particular direction based on the types of questions it recommends we investigate. It puts on the table for debate a wide range of issues, especially the identity of a community and its ends. It requires dialogue, for the task of determining a community’s ends cannot be achieved without communication. And it relies on the participation of the community, not merely upon a group of elites who impose their own ends upon the community.

Since democracy depends upon the widespread participation of a community in a dialogue over its ends, the pragmatist pays special attention to questions concerning the conditions for effective community discussion. Posner rejects such questions as hopeless and doomed because it is not realistic to achieve complete community engagement. But these are precisely the ways in which a community pragmatically resolves the more specific political arrangements it shall adopt. Because this account of pragmatism suggests that we engage in a critical examination of the dominant ends of society, and that we must do so through dialogue and through broad community participation, it points us more toward Concept 1 democracy than Concept 2. This does not foreclose us from embracing some features of Concept 2, but it certainly rejects the insular nature of Concept 2, which leaves too few avenues for dialogue and community engagement. 

Pragmatic democratic inquiry would lead us to ask: What are the pressing problems of the day? What are the relevant community ends? What means can we use to achieve these ends? The inquiry would also go deeper to ask: To what extent are the community ends contested? What is the pedigree of the prevailing community ends? How did these ends become the prevailing ones? For what purposes were these ends originally adopted? Do the reasons these ends were adopted still have currency today? To the extent that there are competing accounts of a community’s ends, can common ground be discovered? 

The pragmatist would also recognize that answering these questions pragmatically at the community level requires certain features of a democratic culture—ones that may need significant improvement. The quality of our pragmatic inquiry into the above questions depends upon the quality of our democratic culture. To improve our democratic culture, the pragmatist would explore ways to improve public deliberation and civic participation. For example, the pragmatist would look to improving education, which enables individuals to assess experience critically and share their assessments with others. The pragmatist might also examine how to promote new means of communication to enable democratic discussions to take place. 

One might object that such projects are not pragmatic because they are often engineered by elites. Deweyan democracy, however, need not be antagonistic to elites so long as elites see their role as guiding and advising the public rather than running the show with minimal public involvement. 

Posner would also respond that these projects are too utopian because too many people do not want to participate and are not educated enough to do anything but vote. But the pragmatist does not simply accept human nature as given. Democracy, for Dewey, is about the “maturing and fruition of the potentialities of human nature.” Institutions must be changed; further experimentation is needed in order to help enable society to become more democratic. In this way, Dewey was idealistic about democracy. He believed that a commitment to democracy makes “claims upon our future conduct” and therefore it “is an ideal.” Dewey would not view the charge that Concept 1 is idealistic as troubling at all; he would say that this is precisely the point of democracy. 

The normative goal of democracy for Dewey was the realization of people’s full capacities.  For Dewey, then, unlike Posner, one cannot simply take human beings and social institutions as one finds them. In the end, Dewey was committed to using the power of intelligence to bring about a better society capable of facilitating the growth of individuals. He was convinced that the form and commitment to inquiry that had so decisively enabled us to increase our control over nature in the realm of science and technology might also be used to improve the political governance of society. But he knew that assessment of this claim would have to await the results of trying to put it into practice. From Dewey’s point of view, it was far too early to pronounce pragmatic attempts at reconstruction as failures or successes, because by and large they simply had not been tried. This remains true today. Even as Posner recommends our acquiescence to the status quo, his claims that aspirations for a more deliberative society are too utopian seem driven more by his affirmation of the present than by any demonstration that improvement is not possible.

Debt Collection

The Australian Competition and Consumer Commission (ACCC) and the Australian Securities and Investments Commission (ASIC) have launched an updated version of their Debt collection guideline: for collectors and creditors publication, revised following "extensive consultation with key industry and consumer representatives to provide enhanced guidance to anyone involved in debt collection". 

The ACCC and ASIC have had joint responsibility since 2002 for administering consumer protection legislation in relation to "the debt collection industry", i.e. under the Australian Securities & Investments Commission Act 2001 (Cth) mirroring provisions of the Australian Consumer Law (ACL).

In 2012 the Federal Court of Australia, in Australian Securities and Investments Commission v Accounts Control Management Services Pty Ltd [2012] FCA 1164, found one of Australia’s largest debt collection companies had harassed and coerced debtors and engaged in 'widespread' and 'systemic' misleading and deceptive conduct when recovering money. During the following year the ACCC prosecuted a company for setting up a fake complaints-handling organisation to give debtors the false impression that disputes about liability were being assessed by an independent arbitrator. The Federal Court ordered Excite Mobile to pay a penalty of $455,000, with the company’s directors ordered to pay penalties totaling $100,000.

 The guideline has been updated to reflect the introduction of the ACL in 2011, the National Consumer Credit Protection Act 2009 (Cth) and new privacy laws and principles. It "incorporates recent court outcomes and practical examples to assist creditors, collectors and debtors in areas that have caused concern".

The ACCC indicates that the Guideline offers practical guidance about:

• when it is appropriate to contact a debtor, including what constitutes contact and reasonable contact hours, methods or frequency of contact 
• how the need for collection activity will be greatly reduced when debtors act promptly and responsibly, and collectors are flexible, fair and realistic 
• new communication technologies developed since the initial publication, including the use of social media platforms and auto dialers, and the potential pitfalls to avoid in using such technologies. 

The ACCC and ASIC encourage businesses to incorporate the recommendations of this guideline into their arrangements with agents and assignees.

Privacy and the 4th

'Too Much Information: How Not to Think About Privacy and the Fourth Amendment' by David Alan Sklansky in California Law Review (forthcoming) comments

 Fourth Amendment law today is overloaded with information: not just in the sense that the explosive growth of digitized information requires rethinking traditional rules of search and seizure, but also and more importantly in the sense that a preoccupation with data flows has led to the neglect of important dimensions of privacy. There is no doubt that the control of personal information is an important value and one uniquely threatened by the rise of social media, by the proliferation of technological surveillance, and by the arrival of Big Data. But the reduction of privacy to control over information has made it difficult to think sensibly about the distinctive threats posed by government searches, and it is partly to blame for the growing and unwarranted idea that the Fourth Amendment should be decoupled from privacy - an idea variously motivated by a belief that the concept of privacy is meaningless, by the fear that privacy is dead or dying, and by a sense that the main threats to privacy today are orthogonal to the chief dangers posed by law enforcement. Search and seizure law would be better served by an understanding of privacy rooted in respect for a zone of refuge and informed by privacy’s longstanding associations with enclothement, retreat, and personal sovereignty. This alternative conception of privacy - privacy as refuge - should also be attentive to the relational nature of privacy, the connection between privacy and civility, and the effects of privacy violations on the perpetrators as well as the victims.

Libertarianism

'Libertarian Administrative Law' by Cass R. Sunstein and Adrian Vermeule comments 

In recent years, several judges on the nation’s most important regulatory court - the United States Court of Appeals for the District of Columbia Circuit -- have given birth to libertarian administrative law, in the form of a series of judge-made doctrines that are designed to protect private ordering from national regulatory intrusion. These doctrines involve nondelegation principles, protection of commercial speech, procedures governing interpretive rules, arbitrariness review, standing, and reviewability. Libertarian administrative law can be seen as a second-best option for those who believe, as some of the relevant judges openly argue, that the New Deal and the modern regulatory state suffer from basic constitutional infirmities. Taken as a whole, libertarian administrative law parallels the kind of progressive administrative law that the same court created in the 1970s, and that the Supreme Court unanimously rejected in the Vermont Yankee case. It should meet a similar fate. Two cases to be decided next Term provide an opportunity for the Court to repudiate libertarian administrative law.

Sunstein and Vermeule state

In the years before Vermont Yankee [1978] was decided, the District of Columbia Circuit - acting through a determined subset of its judges - made a concerted effort to push administrative law in a direction that the Supreme Court was ultimately unwilling to go. These judges believed that administrative law should show special solicitude for environmental interests, consumer interests, and other interests that the judges thought to be under-represented in the political process, because the costs and dynamics of political organization yielded relatively greater authority to industry and producers. Perhaps influenced by prominent work in social science, which seemed to support the claim of under-representation, the judges devised a distinctly progressive approach to administrative law, featuring, among other things, hybrid procedural requirements. These innovations required agencies to offer more procedures than the Administrative Procedure Act (APA) mandated, at least when special solicitude for environmental or other interests was necessary (in the judges’ view).

To obtain a flavor of the period, consider these remarkable words: “Several recently enacted statutes attest to the commitment of the Government to control, at long last, the destructive engine of material ‘progress.’ But it remains to be seen whether the promise of this legislation will become a reality. Therein lies the judicial role.” The court affirmed that role in another case announcing that “[w]e stand on the threshold of a new era in the history of the long and fruitful collaboration of administrative agencies and reviewing courts,” in which judges would be “increasingly asked to review administrative action that touches on fundamental personal interests in life, health, and liberty.” The court proclaimed that such “interests have always had a special claim to judicial protection, in comparison with the economic interests at stake in a ratemaking or licensing proceeding.”

It was not coincidental that such words appeared in an opinion vindicating the claims of a prominent environmental organization, which sought to ensure implementation of regulatory requirements. In a sense, the court’s approach could be seen as an effort to apply its own version of the famous footnote 4 of the Carolene Products case, suggesting that the judicial role should be heightened when politically vulnerable groups were at risk. The approach was a clear administrative law analogue to constitutional developments, associated above all with the Warren Court, that had an unmistakably progressive “tilt.” We might even see the court of appeals in the relevant period as a kind of junior-varsity Warren Court, enlisting principles of administrative law to protect preferred rights (“fundamental personal interests”) and to correct for democratic failures (“Therein lies the judicial role”).

The implicit political science behind the court’s agenda, emphasizing the alleged organizational problems of dispersed interests, was not implausible, and it had some conceptual and empirical foundations. But it was far from self-evidently correct, and even if correct, it did not obviously justify stringent judicial oversight. The more immediate problem with the lower court’s agenda, however, was that it was inconsistent with the governing law. “Fundamental personal interests in life, health, and liberty” may or may not deserve some kind of priority over “economic interests,” but it is a separate question whether judges may legitimately enforce any such priority. The APA did not permit judges to offer greater procedural protection to their preferred types of interests, barring a constitutional due process problem. The Supreme Court found it necessary to reassert control over administrative law, rebuking the lower court for its presumption -  most dramatically in Vermont Yankee itself, which held that hybrid procedural requirements were lawless impositions with no basis in the APA or other recognized legal sources. That holding was accompanied by a highly unusual passage, suggesting that the Court was aware that a more general principle was at stake:

Nuclear energy may some day be a cheap, safe source of power or it may not. But Congress has made a choice to at least try nuclear energy, establishing a reasonable review process in which courts are to play only a limited role. The fundamental policy questions appropriately resolved in Congress and in the state legislatures are not subject to re-examination in the federal courts under the guise of judicial review of agency action. Time may prove wrong the decision to develop nuclear energy, but it is Congress or the States within their appropriate agencies which must eventually make that judgment. In the meantime courts should perform their appointed function.

Since then, it has been observed that some lower-court doctrines have seemed to conflict with Vermont Yankee, and perhaps with the more general principle as well, and scholars have periodically called for a “Vermont Yankee II,” or III or IV, to correct lower-court holdings that seem to defy the Court with respect to discrete issues of administrative law, above all by imposing procedural requirements that lack standard legal justifications.

Yet the Court has not roused itself to police the D.C. Circuit in any systematic way, apart from ad hoc and relatively small-bore interventions, not generally involving large-scale administrative law doctrines. From the Court’s point of view, this is a plausible allocation of resources, corresponding to a similar lack of intervention during the pre-Vermont Yankee period (notwithstanding the DC Circuit’s frequently irreverent approach to the APA and the Supreme Court’s precedents). And for most of the post-Vermont Yankee period, there has been no systematic lack of fidelity by the D.C. Circuit that would warrant a rebuke.

In the past several years, however, administrative law has entered a world that is, in important respects, the mirror image of the world before Vermont Yankee. The prioritizing of “fundamental personal interests” over “economic interests,” at least as the court understood those terms in the 1960s and 1970s, has been turned upside down, and in part by an identifiable understanding of the dynamics of the political process. Today, a determined subset of judges on the D.C. Circuit explicitly hold a distinctive view - articulated both in extrajudicial writings and in judicial opinions - that has found its way into administrative law decisions, sometimes with questionable support in the existing legal materials and sometimes with no support whatsoever. According to that view, political distortions yield policies that depart unjustifiably, and harmfully, from the baselines set by market ordering. These policies violate liberty, properly understood, and also threaten to reduce social welfare. As a corrective, the judges have articulated an approach that we call libertarian administrative law. This approach seeks to use administrative law to push and sometimes shove policy in libertarian directions, above all through judge-made doctrines that lack solid support in the standard legal sources.

In light of the writings of some of the relevant judges, libertarian administrative law may be understood as a second-best enterprise - an attempt to compensate for perceived departures, during the New Deal, from the baseline of the original constitutional order. We can understand libertarian administrative law to be inspired by a particular, highly controversial account of the Constitution – one that does not fit well with the Supreme Court’s current understanding of the founding document. A central assumption in the argument is that the original constitutional order, as these judges envision it, was far more protective of liberty and of market baselines, and thus less hospitable to politically-distorted governmental decisionmaking, than is the current state of constitutional law. Libertarian administrative law, then, emerges from a long-term programme to restore the “Lost Constitution” - or at least to approximate that goal as closely as possible.

Our principal aims here are descriptive and doctrinal. We seek first to establish the existence of this libertarian administrative law, to sketch its contours, and to elicit the justifications that its proponents offer. This descriptive enterprise, we hope, will be valuable without regard to normative controversies. Those who are inclined to favor libertarian administrative law, and to hope that it will flourish, will doubtless approve of some, many, or all of the doctrinal developments that we catalogue.

Our evaluative comments are offered not from the external standpoint of (say) economics, political science, philosophy, or public choice theory, but from the internal standpoint of administrative law itself. The main problem with libertarian administrative law is that it lacks sufficient respect for the legal sources, emphatically including controlling precedents of the Supreme Court - in some cases quite recent, clear, and bipartisan precedents. Across a number of doctrinal contexts, panels of the D.C. Circuit have acted aggressively to reshape administrative law in ways that are not easy to square with the APA and governing precedents of the Supreme Court. In some cases, the D.C. Circuit can claim some (but not strong) support in those precedents; in other cases, it is operating very much on its own. At the same time, many of the resulting rulings are difficult for the Court to police -- as was progressive administrative law in the years before Vermont Yankee. In its ambitious forms, libertarian administrative law, like its progressive doppelganger, is best seen as a proposal for large-scale legal change, rather than a valid interpretation of current legal sources.

For reasons that we will elaborate, we believe that any significant movement in either progressive or libertarian directions would be in grave tension with the foundations of the APA and of administrative law, properly understood -- and hence that the Supreme Court would be properly criticized if it were to embrace any such movement. American administrative law is organized not by any kind of politicized master principle, but by commitments to fidelity to statute, to procedural regularity, and to nonarbitrary decisionmaking. These commitments will sometimes result in rulings that libertarians will approve, and sometimes in rulings that libertarians will deplore. Any sustained effort to engraft libertarian thinking, or some kind of progressive alternative, onto the legal materials will be unfaithful to those materials. But our principal goal here is narrower. While we will elaborate and defend a general claim about political ideology and administrative law, our major aim is to demonstrate that in some important rulings, the D.C. Circuit has been moving in libertarian directions without sufficient warrant in existing sources of law, including the decisions of the Supreme Court itself. While most of the decisions that we discuss cannot quite be described as lawless, some can, and as a whole they go beyond the boundaries of appropriate interpretation of the law as it now stands. They do so with an identifiable ideological valence.

Part I provides a brief discussion of the context, with reference to the separate opinions of the relevant D.C. Circuit judges and their extrajudicial writings on constitutional questions. Part II, the heart of the paper, describes and illustrates libertarian administrative law in six doctrinal contexts: nondelegation, commercial speech, rulemaking procedure, arbitrariness review, standing, and reviewability. Part III offers a more general evaluation of the programme of libertarian administrative law and, above all, its fit with the existing structure of American administrative law. The fit, we argue, is not good, no matter how charitably we treat the decisions. Overall, and in its ambitious forms, libertarian administrative law is best understood as part of a movement - the “Constitution in Exile” or “Lost Constitution” movement - aimed at changing the framework of American public law more broadly. We suggest that on a suitable occasion, the Court should excise libertarian administrative law root and branch, by issuing a modern version of Vermont Yankee, requiring the D.C. Circuit to hew more closely to the APA and its own precedents, and also reminding lower courts that administrative law lacks any kind of ideological valence. As we will see, the Court has recently granted certiorari in two cases – one involving the so-called “nondelegation doctrine,” and one involving interpretive rules – that jointly or severally provide a suitable occasion for repudiating libertarian administrative law.

Valuing the NZ Census

The New Zealand government has published Valuing the Census: A report prepared for Statistics New Zealand which quantifies the benefits to New Zealand from the use of census and population information. It is of interest to statisticians, economists and privacy specialists.

The report states

Statistics New Zealand has commissioned this report to estimate "what dollar value can we place on the benefits to New Zealand gained through the use of census and population statistics information?" This work fits within a much wider programme of engagement with census users to inform relative priorities, and will also provide much of the benchmark material from which an evaluation of the net benefits from changes to census frequency and/or collections methods can be made.

The Executive Summary indicates that

This report provides estimates of the dollar value to New Zealand gained through the use of census and associated population statistics information. The conclusion is clear: despite significant difficulties in developing a rigorous quantification, it is reasonable to conclude that the census delivers benefits well in excess of its direct costs.

The valuation task is complex, reflecting the fact that currently internationally there are no directly applicable models or approaches, and that there are costly hurdles in place to obtain precise estimates of user values for the information. As a consequence, this report utilises a range of approaches to valuation.

What does the census provide? The census provides information on people in New Zealand: it has surveyed the entire population every five years since 1881. As such it provides both a comprehensive picture and a linked time series dataset that has no direct comparators. In valuation terms this poses challenges, as the census' existence (undergirded by the statutory requirement for returns by all New Zealanders) and its generally free dissemination of results means that no market prices exist for direct outputs and that there has not been investment in any tool which closely mirrors the census. Indeed, a frequent response from users during this review is that if the census did not exist, key users would have worked together to create as near a replacement as possible. Uses of the census are diverse, with many applications that are indirect and/or embedded in other products and tools. For information at the level of overall population count with demographic characteristics, census data underpin long-term forecasting such as New Zealand's long-term fiscal position and the requirements for growth related infrastructure and housing. At the more detailed level utilising the Census' more detailed linkage to detailed demographic characteristics for defined geographic meshblocks allows firms and government agencies to identify target groups or, especially when coupled with the historical data, to better understand patterns and relationships such as achievement and earnings for Maori young people. Less direct linkages arise from the census' use in determining the frame for many other non-demographic surveys.

Reliable population based data and projections provide higher level benefits through the reduction in uncertainty for longer-term decisions and investments, and also provide an analytic basis for development of policy choices in some areas which otherwise involve difficult political choices. In an era of growing dynamism in family structures, the census provides one of the main tools to identify those patterns, in turn informing policy, service delivery, and investment choices.

Benefit quantification. As a consequence of the wide range of data uses and the complexity of valuing non-market transactions, this report gathers insights into possible valuations using a wide range of approaches. The core issue explored is in effect a valuation of the extra precision that census data provide over the multitude of other more partial measures. While only a few main areas of use are examined (as more detailed costing would be costly), the report also provides some guidance on the relative values in areas of use.

The main benefit areas quantified are:

• the benefits from more accurate health funding allocations as funding is delivered more accurately to more needy areas; 

• reductions in the costs associated with underutilised fixed capital investments, in both the public and private sectors, because of better information on their timing and location (infrastructure funded by central and local government, aged care, retail); 

• benefits from improved precision and insight in policy making in a range of government agencies, especially for Maori and vulnerable groups; 

• improvements in the value added by a range of firms which use census data in a wide variety of analyses provided to government and private sector firms; and 

• gains from improved survey accuracy and reductions in sample size for private sector market research companies, and StatisticsNZ in respect of a range of other non-census products.

Overall benefit to New Zealand. Benefits are typically estimated at an annual level and then summed over a 25 period to provide a net present value. Given the difficulties in assessing values for many benefits, this report provides a set of reasonable ranges in which a value is likely to lie for some key benefit areas. A cost for carrying out the census, including compliance costs, has been deducted from these benefits to provide an overall net present value. Given then that the values included in the table represent only some eleven major areas of benefit out of the much larger range of unquantified benefits discussed, it seems reasonable to conclude that a lower bound for the Census' value to New Zealand is in a range as set out below ...

Using the most generally applicable discount rate of 8%, this suggests a net present value of close to $1 billion for the benefits to New Zealand gained through the use of census and population statistics information over the next 25 years. In other words, every dollar invested in the census generates a net benefit of five dollars in the economy. This value estimate though is not at the level of rigour applicable to assets recorded on an organisation's balance sheet. It does not include many of the uses discussed but not quantified.

There are many other direct and indirect uses of the census for which quantification has not been attempted but which are clearly highly valuable. The census is used for instance to determine the electoral boundaries for Maori seats, it forms the basis for the NZ deprivation index (widely used in a range of research and policy work aimed at helping New Zealand's most vulnerable people) and underlies work on the Long-Term Fiscal model which informs tax and expenditure policy choices affecting the next 10-50 years.

Indirect uses are also widespread. Economic models rely on robust demographic analysis. Another less obvious application is the use of census data as part of modelling work underlying the calculation of sustainable pathways for Regional Councils and the ecological modelling used to estimate potential future environmental loads and impacts. The difficulty and/or cost of identifying values on these mean it is not cost-effective to develop further, but a consequence is that the overall value of the census to New Zealand will be significantly above the quantified benefits outlined in this report.

Looking forward: use of this valuation. This report clearly indicates that the census provides value to New Zealand well in excess of its cost, but it does not address the issue of whether the current collection and analysis system provides the best value-for-money. It could be that net expected value might be greater if either some additional accuracy or new outputs could be produced (even involving an increased cost), or a combination of changes to the collection and processing systems along with changes to the types and quality of outputs produced was adopted.

This would require a much more detailed set of analyses, for which the information in this report provides a starting platform. This report provides guidance on some areas of high value, some indications of relative value, and identification of many key users which enables more targeted exploration for further stages of census development. For instance, consideration of a move in the timing of censuses to 10 yearly could be investigated on the basis of the difference in value (accuracy and timeliness) to users in key areas, weighed against the expected reduction in costs. This step will require clearer details of the potential changes in methodology and their consequences in terms of accuracy and cost than are currently available.