Independent agencies — so how many of those are there?

No easy answer here either, as Kirti Datla and Richard L. Revesz make clear in an article from the latest issue of the Cornell Law Review.  Here’s the abstract to their article “Deconstructing Independent Agencies (and Executive Agencies)“:

Volumes have been written—both by courts and commentators—about the so-called independent agencies. These agencies are thought to be distinct from executive branch agencies and constitutionally insulated from presidential influence. Yet few have paused to ask what features make an agency “independent” as opposed to “executive.” To answer that question, this Article systematically surveys administrative agencies for a broad set of indicia of independence: removal protection, multimember structure, partisan balance requirements, budget and congressional communication authority, litigation authority, and adjudication authority. This Article also examines the functional differences between independent and executive agencies. As it turns out, there is no single feature, structural or functional, that every agency thought of as independent shares—not even the for-cause removal provision commonly associated with independence. We therefore reject the binary distinction between independent and executive agencies. Instead, all agencies should be regarded as executive and seen as falling on a spectrum from more independent to less independent. From this new understanding of administrative agencies flows a simple theory of presidential control: A President can take any action with respect to an agency (assuming it is within his Article II powers) unless Congress has prohibited that action by statute (in a manner that does not encroach upon the President’s Article II powers). There is no tenable argument to justify an extra layer of constitutional or statutory limits to presidential interaction with agencies.


How many federal agencies are there? What is a federal agency?

There aren’t easy answers to these questions, as an article in the latest issue of Administrative and Regulatory Law News points out.  The article, “Mapping the Contours of the Federal Government,” by John M. Kamensky, writing about the just-issued Sourcebook of United States Executive Agencies, notes that:

. . . [The Sourcebook] authors note that “there is no authoritative list of government agencies” and that “many federal entities do not neatly reside in the executive branch.”  . . .

. . . the first section of the report addresses the question “What is a Federal agency?” and comes to no real conclusion because “Congress defines what ‘an agency’ is in relation to particular laws rather than provide one overarching definition.” . . .

Not even the courts have offered a definitive answer; so, the authors developed their own definition . . . They define an agency as “a federal executive instrumentality headed by one or more political appointees nominated by the President and confirmed by the Senate (the instrumentality itself rather than its bureaus, offices or divisions).”

Administrative Procedures and Bureaucratic Performance: Is Federal Rulemaking ‘Ossified’?

“Administrative Procedures and Bureaucratic Performance: Is Federal Rulemaking ‘Ossified’?”

Univ. of Wisconsin Legal Studies Research Paper No. 1079

JASON W. YACKEE, University of Wisconsin Law School
SUSAN WEBB YACKEE, affiliation not provided to SSRN

We provide the first empirical assessment of the ossification thesis, the widely accepted notion that procedural constraints on federal agencies have greatly hindered the ability of those agencies to formulate policy through notice and comment rulemaking. Using data that covers all active federal rule-writing agencies from 1983 to 2006, our results largely disconfirm the ossification thesis. Agencies appear readily able to issue a sizeable number of rules, and to do so relatively quickly. Indeed, our empirical results suggest that procedural constraints may actually speed up the promulgation of rules, though our model suggests that this positive effect may decline, or even reverse, as proposed rules age. We conclude that procedural constraints do not appear to unduly interfere with the ability of federal agencies to act, or in most cases, to act in a timely manner.


Source: LSN Experimental & Empirical Studies Vol. 10 No. 28,  04/24/2009

Empirical Tests for Midnight Regulations and Their Effect on OIRA Review Time


“Empirical Tests for Midnight Regulations and Their Effect on OIRA Review Time”

PATRICK A. MCLAUGHLIN, Mercatus Center at George Mason University

The midnight regulations phenomenon – an increase in the rate of regulation promulgation during the final months of an outgoing president’s term – is empirically tested using data on the number of economically significant regulations reviewed each month. Submissions of economically significant regulations to Office of Information and Regulatory Affairs (OIRA) are found to increase by seven percent during midnight periods. Spikes in regulatory activity, such as those of midnight periods, are shown to decrease the amount of time regulations are reviewed at OIRA, perhaps because of budget and staff limitations. Evaluated at the mean, one additional economically significant regulation submitted to OIRA decreases the mean review time for all regulations by about half a day. If OIRA review improves the quality of regulations, then any phenomenon such as midnight regulations that leads to spikes in regulatory activity and decreases review time could result in the proliferation of low quality regulations.

Source: LSN Experimental & Empirical Studies Vol. 10 No. 19,  03/26/2009

Including ‘Political’ Reasons in Agency Decision Making

“Including ‘Political’ Reasons in Agency Decision Making”

Michigan State University Law Review, Forthcoming
U of Michigan Public Law Working Paper No. 145

NINA A. MENDELSON, University of Michigan Law School

Presidential supervision has been central to arguments for the legitimacy of executive branch agency action, including on difficult questions of value. Yet very little about that supervision is transparent. Meanwhile, some scholars have argued that political reasons may serve to taint, rather than to legitimize, an agency decision. Agencies generally report neither whether their significant decisions are consistent with presidential preferences nor the content of supervision by presidential offices such as the Office of Management and Budget’s Office of Information and Regulatory Affairs. This paper presents some current evidence on silence regarding White House influence on agency rulemaking. It then recommends greater transparency through requiring agencies to summarize presidential office influence on significant rulemaking decisions. Finally, it suggests that some, but not all, political reasons for agency action are legitimate, but that only a more transparent system can fully resolve the question of which reasons are legitimate and which are not.

Source: LSN: University of Michigan Law School, Public Law & Legal Theory
 Vol. 9 No. 2,  03/24/2009

Internet empowerment

Good op-ed in today’s USA Today“Internet empowerment,” by Ellen S. Miller (co-founder of Sunlight Foundation).

Faith in government is rooted in transparency, and online resources are giving citizens an indispensible weapon in the arsenal of democracy.

. . .

To take advantage of the full power of the Internet, there are some simple things every agency should do. All data should be made available in formats that are open, searchable and “mashable.” That way, creative programmers can more easily create new ways of looking at things. For example, the map shows thousands of earmarks in the fiscal 2008 defense-appropriations bill layered over a map of the country.

Carl Malamud – Liberating Law

Earlier Erika wrote about Carl Malamud and his site.  Today our friend and hero Carl is the subject of a story in the San Francisco Chronicle:

Man provides code manuals free online
Matthew B. Stannard, Chronicle Staff Writer

The San Francisco Chronicle, Saturday, September 27, 2008, p. B1

. . .

“Not everybody is going to read the building code, but everybody who wants to should be able to without putting 100 bucks in the slot,” Malamud said. “Primary legal materials are America’s operating system.”

. . .

“It’s very clear in American law that you can’t get intellectual property protection for law,” said Pamela Samuelson, co-director of the UC Berkeley Center for Law and Technology. “Law belongs to everybody.”

. . .

“This stuff has been locked up behind a cash register,” Malamud said. “(It’s) way too important to just leave it there.”


I especially enjoyed reading the comments — all favorable — and note that Carl is not just our hero:

Yep! This guy is my hero. When I had to repair parts of my house up “to code” I was like, “Okay, where’s the code book? Let me read up on it…” When I found out it wasn’t available for free from a government website (the most obvious place for it!) I was shocked. It just made NO sense…

. . .

Its about time!! I am a retired building contractor and I say its about time the public had ready access to laws like this that they are controlled by. if youre controlled by a law or regulation, you should have free and ready access to it Thanks, Mr Malamud


There are many more posted at


Story update:

Carl is also the subject of a story in the September 29, 2008 New York Times:

“So many people have been moving into the public domain and putting up fences,” he said in an interview from his office in Sebastopol, Calif., where he runs a one-man operation,, on a budget of about $1 million a year. Much of that money goes to buy material, usually in print form, that he then scans into his computer and makes available on the Internet without restriction.

. . .

As of Labor Day, he had put, he estimates, more than 50 percent of the nation’s 11 public safety codes online, including rules for fire prevention. “We have material from all 50 states, but we don’t have all 11 codes for all 50 states,” he said.

Federal Government Documents in HeinOnline

Federal Government Documents in HeinOnline

Jurisdocs, Vol. 30, No. 1, pp. 5-11, Spring 2008

GALEN L. FLETCHER, Brigham Young University – J. Reuben Clark Law School

This article/handout highlights the increasing federal government document content in the HeinOnline database.

HeinOnline includes GPO-originated content useful to law librarians in the areas of 1) federal statutes, 2) federal regulations, 3) the Congressional Record and its predecessors, 4) U.S. Reports, 5) Public Papers of the Presidents of the United States (1931-2004) and similar titles, 6) U.S. treaties, 7) Manual of Patent Examining Procedure (all eight editions), 8 ) many major federal agency decisions (commerce, communication, copyright, labor, patents, securities, tax, and trade), 9) Foreign Relations of the United States, and 10) almost 70 compiled federal legislative histories. All of the above (plus various journals and books relating to law published by the U.S. Government Printing Office) are available in PDF format and indexed on this legal research database.

Source:  LSN Legal Writing Vol. 3 No. 15,  08/18/2008

Students Will Practice IP Law In USPTO Pilot Program

Students Will Practice IP Law In USPTO Pilot Program

Starting this fall, students at several law schools may file and prosecute patent and trademark applications as part of a two-year pilot program sponsored by the U.S. Patent and Trademark Office.

Source: IP Law360: Litigation, Policy & People News


See also the National Law Journal story “N.Y. Law School, patent office to extend pilot project to streamline exam process.”

New York Law School and the U.S. Patent and Trademark Office will extend and expand a year-long pilot project designed to streamline the patent examination process by opening it to scientific and technical experts. The law school also announced the launch of its new Center for Patent Innovations, headed by Mark Webbink, formerly the senior vice president and general counsel at Red Hat, the premier Linux and open source vendor.

E-books in the air

These three paragraphs in a front-page (below the fold) story in today’s New York Times, “To Save Fuel, Airlines Find No Speck Too Small,” caught my eye:

Up in the cockpit, Delta is studying whether it is feasible to divide the heavy pilot manuals required on each flight between the captain and first officer, so pilots are not toting duplicate sets of five or six books that each weigh about a pound and a half.

Eventually, the airline wants to eliminate printed manuals and display the information on computer screens, a step the government would have to approve.

“That’s very much where we want to go,” said Gary Edwards, Delta’s director of flight control. “That’s the wave of the future.”