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6 - The Risks of Expertise: Political Administration and Expert Groupthink

Published online by Cambridge University Press:  05 June 2014

Adrian Vermeule
Affiliation:
Harvard Law School, Massachusetts
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Summary

For a final case study in the management of political risks, I turn to the administrative state. Here the relevant law is only partly constitutional in the strict sense. The eighteenth-century origins of America’s written constitution implies that constitutional text is often silent on crucial questions about the administrative state, which is largely a creation of the late nineteenth and twentieth centuries. Even where the written constitution does speak to the relevant issues, its pronouncements are obscure, even Delphic, and must be elicited through controversial methods of interpretation. Thus the law structuring and governing the administrative state stems in large part from quasi-constitutional framework statutes, especially the Administrative Procedure Act of 1946 (APA).

Here too, however, political risk management is central to the enterprise, and the contrast between precautionary and mature regulation of political risks is central to the analysis. In the face of countervailing political risks and competing political forces, the administrative state struggles to find a modus vivendi, let alone an optimum. At the level of theory, law, democracy, and expertise all have their claims. At the level of concrete politics, competing institutions and interest groups buffet the administrative agencies. Within a field of perpetual conflict structured by congressional statutes and the oversight of congressional committees, on the one hand, and presidential policies and White House oversight, on the other, agencies make decisions of law, policy, and scientific fact or causation. The third leg of this triad is critical; given the complexity of the issues that agencies decide, facts and causation are routinely difficult and contested, and agencies are either permitted or required to base their decisions on the views of expert, panels or experts on the agency’s own internal staff.

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Publisher: Cambridge University Press
Print publication year: 2013

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References

Wagner, Wendy E., The Science Charade in Toxic Risk Regulation, 95 Colum. L. Rev. 1613, 1617 (1995)Google Scholar
Shapiro, Sidney A., OMB and the Politicization of Risk Assessment, 37 Envtl. L. 1083, 1086–87 (2007)Google Scholar
Grofman, Bernard, Owen, Guillermo & Feld, Scott L., Thirteen Theorems in Search of the Truth, 15 Theory & Decision 261, 273–74 (1983)Google Scholar
Hong, Lu & Page, Scott E., Some Microfoundations of Collective Wisdom, in Collective Wisdom: Principles and Mechanisms (Jon Elster & Helene Landemore eds., Cambridge University Press 2012)
Vermeule, Adrian, Many-Minds Arguments in Legal Theory, 1 J. Legal Analysis1 (2009)Google Scholar
Ben-Yashar, Ruth C. & Nitzan, Shmuel I., The Optimal Decision Rule for Fixed-Size Committees in Dichotomous Choice Situations: The General Result, 38 Int’l Econ. Rev. 175, 179–83 (1997)Google Scholar
Sunstein, Cass R., Reviewing Agency Inaction After Heckler v. Chaney, 52 U. Chi. L. Rev. 653, 656–57 (1985)Google Scholar
Fey, Mark, A Note on the Condorcet Jury Theorem with Supermajority Voting Rules, 20 Soc. Choice & Welfare27, 31 (2003)Google Scholar
List, Christian & Pettit, Philip, An Epistemic Free-Riding Problem?, in Karl Popper: Critical Appraisals 128, 138–40 (Catton, Philip & Macdonald, Graham eds., 2004)Google Scholar
Karotkin, Drora & Paroush, Jacob, Optimum Committee Size: Quality-Versus-Quantity Dilemma, 20 Soc. Choice & Welfare429, 433 (2003)Google Scholar
Persico, Nicola, Committee Design with Endogenous Information, 71 Rev. Econ. Stud. 165, 167 (2004)Google Scholar
Austen-Smith, David & Feddersen, Timothy J., Deliberation and Voting Rules, in Social Choice and Strategic Decisions269 (Austen-Smith, David & Duggan, John eds., 2005)Google Scholar
Austen-Smith, David & Feddersen, Timothy J., Deliberation, Preference Uncertainty, and Voting Rules, 100 Am. Pol. Sci. Rev. 209, 210 (2006)Google Scholar
Seidenfeld, Mark, Cognitive Loafing, Social Conformity, and Judicial Review of Agency Rulemaking, 87 Cornell L. Rev. 486, 486 (2002)Google Scholar
Kuran, Timur & Sunstein, Cass R., Availability Cascades and Risk Regulation, 51 Stan. L. Rev. 683, 685–89, 727–28 (1999)Google Scholar
Beatty, John, Masking Disagreement Among Experts, 3 Episteme52, 55 (2006)Google Scholar
Visser, Bauke & Swank, Otto H., On Committees of Experts, 122 Q.J. Econ. 337 (2007)Google Scholar
Ladha, Krishna K., The Condorcet Jury Theorem, Free Speech, and Correlated Votes, 36 Am. J. Pol. Sci. 617, 629 (1992)Google Scholar
Kargin, Vladislav, Prevention of Herding by Experts, 78 Econ. Letters401, 402 (2003)Google Scholar
Hung, Angela A., & Plott, Charles R., Information Cascades: Replication and an Extension to Majority Rule and Conformity-Rewarding Institutions, 91 Am. Econ. Rev. 1508, 1509 (2001)Google Scholar
Page, Scott E., The Difference: How the Power of Diversity Creates Better Groups, Firms, Schools, and Societies158 (2007)Google Scholar
Stephenson, Matthew C., Bureaucratic Decision Costs and Endogenous Agency Expertise, 23 J.L. Econ. & Org. 469, 472 (2007)Google Scholar
Stephenson, Matthew C., Information Acquisition and Institutional Design, 124 Harv. L. Rev. 1422 (2011)Google Scholar
Ashford, Nicholas A., Advisory Committees in OSHA and EPA: Their Use in Regulatory Decisionmaking, 9 Sci. Tech. & Hum. Values72, 72 n.1, 77 n.16 (1984)Google Scholar
Coady, David, When Experts Disagree, 3 Episteme 68, 71 (2006)Google Scholar

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