A New Model of Administrative Enforcement

This Essay proposes a new method of monitoring regulatory compliance by a firm that operates multiple sources of risk, such as air polluting smokestacks. The expense of individually monitoring such sources may consume a large share of the agency’s enforcement budget, undermining deterrence objectives. Under our approach, regulators would instead randomly select one of the firm’s sources of risk, determine the firm’s liability at that source, and apply that outcome perforce as determinative of liability at all of the sources. This method, which we call single-outcome sampling (“SOS”), replicates or improves deterrence generated by the current source-by-source enforcement model, but at a fraction of the cost. To demonstrate these benefits, we apply SOS to the EPA’s monitoring of compliance with Clean Air Act regulations. We also address potential risk-bearing and judgment-proof costs associated with our proposal and explain how both problems can be solved.

Not-So-Serious Threats to Judicial Independence

Although recently several prominent leaders of the federal judiciary and the American Bar have decried contemporary threats to judicial independence as both serious and unprecedented, this Lecture offers an alternative perspective. I contend that the independence of the federal judiciary is secure. I argue that contemporary criticisms and challenges of the judiciary are relatively mild and, on balance, beneficial. 

I review three historical challenges to judicial independence and offer a lesson to be learned from those challenges. The most serious challenges to the independence of the federal judiciary occurred during the Jeffersonian, Reconstruction, and New Deal eras. The federal judiciary responded to those challenges by exercising restraint, which offers a lesson for those concerned about contemporary threats to judicial independence.

Some contend that contemporary threats to judicial independence include public criticism of judicial decisions, legislative attempts to curb the judiciary, and political battles to appoint federal judges, but these challenges are modest and even promote judicial independence. Public criticism, which is essential to democratic government and even judicial decision-making, is not a serious threat to judicial independence. Legislative curbs on the judiciary are an exceptional part of the political process against which the judiciary has ably defended its decisional independence. Finally, the confirmation process, however difficult or unpleasant, is a necessary check for those nominated for life-tenured judgeships. Ultimately, federal judges have the foremost responsibility for safeguarding their independence by exercising restraint.