I could never prove this but I have noticed that the kind of person who is intensely into procedural complexity and rigidity isn't just a certain kind of liberal but is a kind of liberal who doesn't trust individuals and their judgement. It's almost a kind of culture where individual judgement is viewed as corrupt or corruptable but instead they substitute an elaborate set of procedures, each of which depends on individual judgement, all of which can be just as corrupt as a more goal directed process.

It's definitely impossible to argue with people within this culture about this because they are sure that what they have done protects fairness even if the goal gets swept away by the process. So if you argue, they view you with suspicion.

Also, I've noticed that the younger people are, the more they believe in this. It's almost like apps and social media have gotten people to trust algorithms but not trust individual choice. They want every choice to be like an app.

This definitely has to have something to do with removing responsibility from the individual. This sort of tracks with 'accountability' because then if someone asks you to account for the action, you simply point to the procedures. That way you will not be held at fault. Then everyone acts like the procedures sort of do everything, rather than the people implementing them. So they chop up decisions into 20 pieces but in the end, each of the 20 DOES require on individual judgement calls. It's difficult because often younger people will hate to make decisions, which I suppose I understand--because it's hard to do this. They sort of what to have something which decides for them but which they merely have to implement. However, there is no such thing. Also, if we have a fully automated system then we WILL lost sight of goals.

Sometimes you will have to go back and convince everyone that the goal was not achieved and the procedures have to be modified...but you could have streamlined the whole process by simply focusing on the goal. I also get this part, since it's nice not to have the anxiety of 'I made this choice you do not like.' However, it seems deceptive. A choice IS being made by someone.

I have also noticed that people who like control or don't like to have their decisions questioned and want their preferencs to win love these procedures. So there's something authoritarian about them--even though they are supposed to be bureaucracy, which is somehow supposed to undercut individuals and not be authoritarian (as far as it goes). However, I cannot figure this part out. And maybe I'm wrong about all of this but I think about it a lot when something weird happens in a collective effort where the goal gets completely lost but was easier to achieve directly when people were less enamored of procedure.

This comment is too long! My point is there is some kind of normative culture behind this phenomenon and it's going to be really hard to change. Some people simply gravitate to this, and generally they are the kind of people who run things. Elite education is somehow teaching this as a norm of all decision-making. I don't know how, exactly. But it's pretty engrained.

Bureaucracy has its own logic and I'm sure there is a passage from Weber I could use but I can't think of one right now.

One of the webcomics I followed where the historical Benjamin Franklin in a modern-day setting was a prominent character (look, the 2000s were weird) had him say something that rang true: that we today assume power to be evil and corrupting by default, to a much greater degree than is healthy.

One part of the essay I don't think tracks is where it references the military and police as institutions people trust regardless of how well they are perceived to follow rigid procedures. Police issues aside, it's at minimum not an especially replicable model.

One quibble: "the never-ending expansion of copyright and patent protections"

In the US at least, patent protection has diminished substantially since its heyday in the late 1990s. Copyright is a different matter. In general, the ebb and flow of these legal rights has more to do with the balance of power between interest groups, and less to do with any input from the public.

Another interesting question is this: an important part of training a machine-learning model is preventing overfitting. You want the model to generalize, not memorize. I think there is a strong equivalent in the legal (or procedural) realm.

The law is a classifier - a mapping from a feature space to a binary outcome space (legal or illegal). Simple, straightforward rules and procedures are generalizations - they are chosen to maximize "the public good" (for some definition thereof) over some broad set of inputs. They are comprehensible and predictable to both the rulers and the ruled. But straightforward rules and procedures invariably lead to judges having to make decisions that feel, to them, unjust. So they create exceptions or complications that allow them to reach the result that they want in a specific case. But these exceptions ramify and interact, damaging the predictability and legitimacy of the law ("bad cases make bad law"). Needless to say, such complexity is lucrative for lawyers!

There was a recent Lander follow-up story in the Globe with a stupid headline* but a message relevant to bureaucratic excess. There are so many procedures to be followed that even if you follow procedure to get what you want someone can accuse you of breaking the rules, which has its own set of procedures, which can themselves be broken, ad infinitum. So it's easy to use the rules as a weapon if you're so inclined.

The greatest challenge of all, the one that ultimately led to his departure, may have arisen from his first task. In the post-Trump quest to restore science in the White House, Lander wanted to hire the best talent he could -- but it seems a longtime government lawyer repeatedly told him, "You can't

Rachel Wallace, a civil servant for more than 20 years across six agencies, rose during the Trump administration to be general counsel and chief operating officer of the Office of Science and Technology Policy. She served as the agency's adviser on matters of ethics and procedure, and she repeatedly objected to various efforts by Lander to move the hiring process along, as she described in a letter of complaint.

Lander frequently sought second opinions from the White House Counsel's Office -- for example, on whether Wallace was right that an academic expert on energy would have to give up all his federal grants to serve as a one-day-a-week consultant to the agency. White House lawyers saw no such requirement, and their advice generally allowed him more leeway.

In September 2021, in concert with White House lawyers, Lander "reassigned" Wallace: She would remain the agency's chief operating officer and take no cut in pay, but she would become deputy counsel instead of general counsel. (Lander himself never met in person with Wallace, who did not report to him directly; he spoke with her only on several phone calls and Zooms.)

Wallace filed a complaint alleging that she had been the victim of gender discrimination and that her demotion involved retaliation. The confidential White House investigation that followed found no evidence of either discrimination or retaliation, as even Wallace's letter acknowledges. (She was later replaced by another woman, and six of seven deputy directors under Lander were women.) In her letter of complaint and elsewhere, Wallace also accused Lander of a broad gamut of ethical violations, which the White House rejected.

The White House's inquiry, which interviewed seven witnesses, did find that multiple women had complained that Lander had spoken to them in a "demeaning and abrasive way." It also found that some agency leaders had excluded Wallace from some meetings and assignments. In response, senior White House officials instructed the agency to try harder to improve its culture and to include Wallace more.

Days after the White House rejected her request to be reinstated, Wallace appeared in Politico under a headline saying Lander "bullied and demeaned subordinates," alleging that he called colleagues names, disparaged and humiliated them, and left "numerous women" in tears. A handful of anonymous others in the story backed her up, using words like "abuse" and "aggressor."

*I hate the headline because it makes the same mistake that people argue was made in the first place, that Lander was the same as Weinstein, Sabatini, Louis CK etc who were sexual predators and "canceled." No one ever made that case, just that he was borderline abusive** to everyone and some people interpreted that (or manipulated according to the story) as sexism when applied to women.

**If you're inclined to take Lander's side, and I know and trust several people in the story who defend him, the "abuse" was him being honest with people who sucked at their jobs.

Oops lost my last point due to fiddling with tags. Anyway the story makes me skeptical of the proposed solution of appointing more non-lawyers. One lawyer with a rule book can stymie 100 non-lawyers who want to do things.

In the US at least, patent protection has diminished substantially since its heyday in the late 1990s. Copyright is a different matter. In general, the ebb and flow of these legal rights has more to do with the balance of power between interest groups, and less to do with any input from the public.

And it will be interesting to see if the more progressive (taken as a whole) Democratic caucus will decline to extend Mickey's copyright again, which is up next year.

The courts have also thrown wrenches into the elite-pluralist seesaw of IP, though. There is some danger of protections getting too strong for music over time, with that court case where it was more that they sounded similar than that anything was copied. I guess Google v. Oracle came out okay though.

I do this for a living -- when someone (in my experience usually either a wealthy landowner or an insane crank, or both) believes (or is willing to claim they believe) that a procedure hasn't been followed, their recourse is to sue, and I defend the suits (at this point, I supervise the lawyers who do the actual defense). It's a demented, stupid system that transfers substantive decision-making from one set of government employees, agency bureaucrats with some level of expertise, to another set, generalist judges with no idea about the substance of the issues they're deciding on. They get it right a fair amount of the time, but always with a pointless, stupid amount of delay.

The flip side is that if you don't have this level of control over government action, you get Robert Moses and no one stops him from destroying every neighborhood in the Bronx. I think that's the risk you just have to take if you want a functioning administrative state -- restrain Moses-types through political action rather than through the courts.

Didn't work.

7,9 get it right, the lawyers are a symptom of the problem and not the cause. The cause is that too many things can be taken to court.

The very weak relationship between the second of the last three paragraphs and the third gives the game away. Lawyers are not preventing these systemic changes in the bureaucracy. The first of the final three paragraphs describes why agencies need lawyers.

In the wake of Trump with his crazy policies and pandering executive orders, thwarted (sometimes, like with the census) by judicial review, this article strikes me as from another planet. I guess it would. I don't think our central problem is too many lawyers, though, but -- check out the Dominion sj brief in the case against Fox News -- too much intentional dishonesty in the media.

9.1 -- Should there be more alj proceedings, so that your supreme court judges are working from a record where a specialist judge already heard the evidence?

The introduction is amazing. https://int.nyt.com/data/documenttools/redacted-documents-in-dominion-fox-news-case/dca5e3880422426f/full.pdf

That's a lot of them, and it doesn't help all that much. Even the streamlined, accelerated special proceeding where a court is just reviewing the agency's record ends up taking multiple years start to finish. (This is the case in NY state because the procedural rules for these special procedures are themselves pretty lunatic: depending on the precise type of proceeding, the trial court can't decide them, it has to transfer them to the intermediate appellate court for decision. So you have months of proceedings in the trial court to get the transfer order, and then years in the appellate court.)

14 That seems like it should be amenable to a legislative fix. Isn't the developer community powerful enough to get that through?

Can the lawyers speak to why filing timelines and court order deadlines are often months out? Does it really take that long to write things or is everyone juggling 100 different things that are due sequentially and in reality no one starts working on court docs until just before they're due? In that case there's an argument that more lawyers would expedite things because courts could give parties a week to respond instead of months at every step of the process.

I don't think the lawsuits that let us block a few of Trump's wackiest actions were worth it. I spent a year working on one of them (the citizenship question on the census). We took it to the Supreme Court and we won and the team was fantastic and they're all heroes (I got loaned to the team to do dumbass discovery-squabbling to keep DOJ from tying up the lawyers who were handling the core parts of the case, so I wasn't doing anything clever or glamorous. I did impress the hell out of the chief of the Civil Rights bureau with my capacity for being successfully intransigent about refusing to provide pointlessly burdensome irrelevant discovery).

In terms of doing any meaningful good in the world, though, I'd trade the ability to bring that case for the ability to have instituted congestion pricing in NYC back in 2019 when it passed rather than several years from now, though.

Isn't the developer community powerful enough to get that through?

Not sure where developers suddenly came into this - if a lot of LB's battles are appeals of zoning approvals, she didn't say so - but on that front I would say developers are a lot more interested in the right to sprawl (which is the biggest business for them now) than on speeding approvals systemically (in multifamily it's a big corporation's game, and they have their own lobbying shops and influence operations). They don't even give significant amounts to the bigger YIMBY groups, although they tend to get on board with the legislative proposals.

15: No one in power seems excited about changing it. Of course, even cases that can be decided in the trial courts can still be appealed, so it's years to a final judgment anyway.

16: One thing that slows things down, if you're a government lawyer, is multiple layers of approval. To get something filed in my office, my line attorney has to draft it, which means a fair amount of work collecting documents ne getting oriented to what's going on in the case before drafting can start. I have to read it and approve it, and plausibly do a couple of rounds of editing. Depending on the case, it might need approvals above me in my office, and then the agency client has to read and review and they might need to edit. Any step of that can happen pretty fast, but even a couple of days delay at each step turns into weeks very easily.

I've worked with EL previously, he's competent and abrasive, basically everyone that runs large research projects is like that IME.

This is a topic close to my heart, both from workplace issues and from a long-standing interest in organization behavior.

IMO this from 1 gets it right, and is the core of the issue:
doesn't trust individuals and their judgement. It's almost a kind of culture where individual judgement is viewed as corrupt or corruptable but instead they substitute an elaborate set of procedures, each of which depends on individual judgement, all of which can be just as corrupt as a more goal directed process.

I thought this was also pretty interesting, tldr is that anyone who knows how their organization actually works is likely to give up. https://hbr.org/2019/12/can-you-know-too-much-about-your-organization

I vividly recognize the type of person described as ES's antagonist. Those people are one of the real obstacles to the idea of universal compassion to me. I know someone else who was damaged professionally by the same difficulty of procedural impossibility of being able to temporarily hire good skilled advice.

21: Who's ES? Is that a typo for EL?

The organization I've worked in that's the most functional, did have a lot of people who really liked complicated procedures, but there were also enough people who liked to push back against that. One of the key phrases you could use for that pushback is "We are not going replace our future selves by robots." Which just served to remind everyone that if decisions needed to be made in the future, we would be there to make those decisions then, we didn't need to make all those decisions now.

22 yes it is, I mean the person who obstructed and then sued after being sidelined.

@9

"I think that's the risk you just have to take if you want a functioning administrative state -- restrain Moses-types through political action rather than through the courts."

I agree with this - and with the notion that generalist judges are not suited for deciding cases in specialist fields. The solution is really to move more of the policy making into the political sphere.

Also - the notion of an "elite-pluralist seesaw of IP" is not accurate. Yes, there is a puppet theater, a shadow play for the masses in which various business interests make populist arguments. But those business interests do not satisfy any clear division of elite and populist. Who is more elite and who is more populist?

-A medical diagnostic start-up with a patent-ineligible software tool or Quest?
-A US pharma company or a global manufacturer of generics?
-A US pharma company or a massive, monopolistic health care insurer?
-Apple or Samsung?
-Accenture or Google?
-American Axle or Neapco?

25: I wasn't using "pluralist" as stand-in for "populist", I was combining "elite" and "pluralist" into a single descriptor, indicating a seesaw between different groups, some corporations, some professions, but mostly all connected.

What's interesting about my current org is it's a hybrid of a legacy research org that historically had fewer formal procedures (more startup-like) onto which pieces have been added as they became necessary. Most of those rules were applied to the legacy org but every now and then there's a bit of "We do what?" when you find some residual policy that no one thought to update.

16 Different logic applies in different circumstances. I'm testifying next month in my daughter's family law matter in California. It took more than 6 months to get a hearing date, because the judge is booked up. I suppose the solution for OP writer is to make it easier for a parent to move out of state with a kid over the objection of the other parent, but maybe that's not the right kind of lawyer/procedure hate. The actual solution is doubling the number of judges in California (and court staff, courthouse space, all the choke points).

When you're challenging an agency action, the agency has to have time to compile the agency record, the parties have to have time to review it, and, if expert review is necessary, have their expert issue a report, get deposed, etc. I had a case against HUD in the DDC just before the pandemic, and it took about a year from filing to a summary judgment decision. I was representing a city that had gotten a HUD affordable housing grant. HUD thought some deadlines had been missed, and although the money was spent on what it was supposed to be spent on, they nonetheless just reached out and took money appropriated in later years for the city's affordable housing program as an offset. We argued that they have to give notice and an administrative hearing -- as required by the statute -- before just simply grabbing the money. We won, because that's what the statute says. HUD isn't funded or staffed to give the admin hearing, so the city went ahead and spent the money building affordable housing.

Thanks for the post btw, interesting essay.

FWIW (and this is a tangent, no need to derail discussion), while my personal contact with Lander has been fine-ish, I view his incredibly self-serving writeup of the history of CRISPR as dishonesty aimed at swaying the Nobel committee, and of a piece with his organizational problem solving style (ie cut off opponents at the knees by any means available).

Here's a critique that links to his original piece.
https://www.michaeleisen.org/blog/?p=1825

the agency has to have time to compile the agency record,

Do we ever. If there's one thing non-lawyers underestimate the laboriousness of, it's producing documents, either in discovery, or pulling together an administrative record, or answering FOIA/FOIL requests. It takes a really surprising amount of time and effort.

I'm completely agnostic on the role/culpability of lawyers in all this*, but I do agree with the basic premise. Just in my brief tenure as a licensed architect, I've seen plan review & inspection become significantly more procedure-bound, and although the people instituting the procedures always claim that they'll provide more certainty and be more streamlined, it's not the case at all. And it's very much about replacing individual judgment with unthinking application of rules.

In addition to the mindset described in 1, I think it's also very appealing to a certain type of person who doesn't like/can't handle ambiguity. Just follow the rules! It's so simple! The rules definitely will always be applicable, and will never impose absurd results.

*I mean, fear of lawsuits is absolutely one of the most powerful forces in American life, and very much so in procedure-creation, but I don't think internal lawyers have a lot of agency in that. The only fix I've ever been able to see is for lawyers to tell clients not to file (or sometimes, fight) suits and for judges to throw out more cases**. I understand that's both simplistic and impossible, but all the other solutions are complicated and impossible, so who cares?

**when I was about 10, my mom was on jury duty for a personal lawsuit. It happened to be right before we were scheduled for a 2 week vacation, so there was a lot of tension about whether it would finish on time. In the event, I think it was decided the day before departure. Anyway, it was a classic frivolous malpractice suit--the plaintiff had to go to 3 or 4 doctors to find one who'd testify on his behalf, and nobody thought the doctor was credible--and after the jury came back with a swift exoneration, the judge thanked them, saying he really wanted to dismiss the case, but the paperwork was too onerous.

I appreciate the post. I feel like this is a topic that I've seen talked about in center-left circles the last couple of years* but don't have a strong opinion about it. It would be good to have more functional institutions, but I don't know what is the lowest-hanging fruit in terms of simplifying.

* Ezra Klein had a recent podcast on the subject, and one of the books mentioned is Public Citizens which came out in 2021.

I was in a car accident that I admitted fault in, though I blame Trump because it was on January 6th, 2021 and I was rattled. It took two years for the lawsuit to settle and the plaintiff got very little. I don't think his lawyer knew what he was doing.

28.2: That's a funny story. You know the facts and I don't, and you think the money was ultimately well spent so it all turned out okay in the end. But it's a story where HUD is responsible for controlling how housing grants get spent, and they think your client violated its rules significantly enough that the right thing to do was to claw back the money. What happened in litigation wasn't any kind of determination on the merits that HUD was in error, it was a determination that HUD wasn't allowed to claw back the money without going through a procedure that they didn't have the staffing or funding to manage. If HUD's decision was substantively wrong, it's a good thing that it was vacated, but that's just luck -- it would have been vacated regardless of the substance.

This seems to me like a hell of a way to run a railroad.

Widespread state adoption of Iqbal would be a big step forward.

I've been involved in a multi-state multi-case extravaganza the last couple of years, which I mention because one of the cases is in Florida. Florida recently adopted rule changes designed to make summary judgment way easier to get -- basically adopting federal procedures and standards. I'm sure it's making a huge difference.

34 HUD had a longstanding practice of basically strong-arming cities and counties, and ignoring the statute. The had an argument that a different statute let them do this, but it was transparent nonsense. Congress ended up suspending all these clawbacks -- but that was a temporary measure, and I don't know where they are on it now.

This seems to me like a hell of a way to run a railroad.

I was just reading the transcript of this podcast about medical billing.

It tells a story of a woman who felt like the hospital over-billed for an ER visit; she contacted both the hospital and the insurance company and neither of them were helpful, so she ended up filing suit in small claims court, which was not a useful venue (and then, even though she lost the lawsuit she ended up being able to clear the bill with a different procedural step -- it's worth reading the whole story.

Dan: So Lauren didn't have an expert witness, but she had brought evidence with her: Printouts from the Healthcare Blue Book, showing typical prices for the area -- much lower prices than she was being charged. For instance, there was an IV injection and the charge on her bill was $1323.

Lauren: Healthcare Blue Book says that a fair price for that is $143.

Dan: But there was a problem nobody else in the courtroom had ever heard of Health Care Blue Book.

Lauren: literally no one else in the room was familiar with Healthcare Blue Book. and so they were like, well, this is just a website.

Dan: It was frustrating. The judge was not keeping up.

Lauren: , but I get it too, right? It took me weeks to wrap my head around this, so how can I expect the judge to wrap his head around all of this, in this short amount of time?

34 con't -- It was a matter of the deadlines for particular paperwork steps in the process.

HUD has a history of inspector generals that take very aggressive positions on the agency's procedural rules. I had a lawyer friend who made a good living pushing back on various HUD IG overreaches, and we worked together on maybe half a dozen of them. He died and I still have one entity across a river from you.

Sure, when you say "strongarming" you mean "not giving them all the procedure they're entitled to by statute," which is why you won the case. Whether it's a good thing as a matter of substance that localities should be entitled to all that procedure is a different question.

(When I was griping about wealthy landlords and insane cranks, I should have included local governments on my list of vexatious litigants. I'm not saying Long Island should be evacuated and used as a nature preserve from the Queens border all the way out East, but I'm not saying that would be a bad idea either.)

literally no one else in the room was familiar with Healthcare Blue Book. and so they were like, well, this is just a website

From my research, it really is just a website. Some institutions of mild repute or at least age seem to have linked to it, and it's been around for a while per press releases (a startup), but I couldn't find it having any particular imprimatur.

From my research, it really is just a website.

I admit, I don't actually know, but the next bit in the transcript is:

Dan: Lauren didn't just rely on HealthCare BlueBook. These days, because of an executive order from the Trump administration, hospitals are required to post their price lists to the internet, where everybody can look them up. And Lauren had looked. The other three local hospitals charged $69, 111 dollars, 156 dollars.

Lauren: So $1,323 is like just bananas, right? And so I can tell the judge is like getting ready to not rule in my favor, and I'm like, okay, this is my last ditch effort.

Dan: She brings out her notes, shows the judge the specific prices charged by other hospitals.

Lauren: And he's like, well, that can't be right. Do you have the proof that the other hospitals charged so much lower for the exact same thing, but I didn't print them out.

I'm sure you've pulled up one of these Excel spreadsheets, right? If I were to print it out, it would be thousands of pages, so I didn't print them out. So I didn't have them with me, but his conclusion was she must have made a mistake and been looking at the wrong thing because this is so bonkers that it can't possibly be true.

"she must have made a mistake and been looking at the wrong thing because this is so bonkers that it can't possibly be true."
Same language is used when focus groups are presented with the Republican Party platform.

Whether it's a good thing as a matter of substance that localities should be entitled to all that procedure is a different question.

Of course. The answer to which lies with Congress, not in unilateral agency overreach.

Of course, the agency should be staffed appropriately to discharge its responsibilities. That it isn't is not the fault of lawyers, at large, or of cities and counties that participate in programs designed by Congress to accomplish particular goals.

AIHMB, I've been involved in a lot of government procurement disputes over the years. They are very fast moving, typically, but even with all the deference agencies get, sometimes they just got it wrong. And it is important that there be a process for fixing mistakes, because fear of making mistakes helps agencies be more clear in defining what they want, and follow the various provisions. Most of my cases have been federal, but I was involved a long time ago in a NY state procurement -- I don't even remember which side we were on -- having to to with whether bolts or bearings or some component met the domestic manufacturing requirement.

You used to be able to bring a federal bid protest case in district court (or the GAO or the COFC) but the DC procurement bar and the Pentagon teamed up to eliminate that in the 90s. I was on the ABA task force advising Congress and there I was, an associate, and I had more experience litigating district court protests than the rest of the group all together. They spouted one ignorant justification after another, and got the cases limited to DC forums.

The HUD case Charley and LB are discussing is interesting in thinking through some of the issues here. I can confirm from personal experience that HUD is very aggressive about oversight of its grantees and very strict about its deadlines; "get this document submitted by date X or we lose a lot of money" is a regular part of my job. Presumably the reason for that is that they've gotten in trouble in the past for not keeping close enough watch on grantees who did shady stuff with their money. As LB says, local governments are, um, not always the most upstanding institutions. Has the pendulum swung too far the other way? Maybe? It's really hard to say where the "right" level of oversight should be.

Additionally, as the outcome to Charley's case shows clearly, HUD is enveloped in an enormously complex thicket of statutes and regulations that impose requirements on it that it is never given the resources to fulfill. That trickles down to the grantees too; we are in theory supposed to submit our annual plans to HUD 45 days before the start of our program year, but we can't do that until they tell us how much money we're getting, and they can't do that until Congress appropriates the funding for these programs, which in recent years has always been several months after our theoretical deadline and well into the program year. There's a lot of stuff like this, where everyone uses whatever waiver authority they have to look the other way on mandates that are literally impossible to meet.

Most of my cases have been federal, but I was involved a long time ago in a NY state procurement -- I don't even remember which side we were on -- having to to with whether bolts or bearings or some component met the domestic manufacturing requirement.

Ha, we recently had a briefing by HUD on how they're handling the new Build America, Buy America Act requirements for procurement, which mostly applies to iron and steel at this point. HUD has tons of waiver for its programs but they don't quite cover everything, so afterward we went through the drawings for one project that may be subject to the requirements to see if it called for using any iron or steel. There was some in the plumbing fixtures. Probably best to find an alternative material!

Anyway, this stuff is complicated and there are lots of unanticipated outcomes from legislative decisions. To the extent there's a solution it's mostly "get Congress to do better" but, you know, good luck with that.

an enormously complex thicket of statutes and regulations that impose requirements on it that it is never given the resources to fulfill.

This. I lost a case last year which I legally absolutely should have; there's a requirement that a category of regulatory amendments get a hearing before they're promulgated, and the agency had been interpreting the category very narrowly because they didn't have the resources to do all the hearings required. And they were flat wrong on the statute; we didn't have a leg to stand on.

But this isn't a character flaw or a failure of competence, it's what you get when a legislature imposes costly procedural requirements and then doesn't appropriate funds that allow the agency to satisfy them. I think the better solution is less procedure rather than more budget, but impossible requirements can't be a good answer.

I lost a case last year which I legally absolutely should have; there's a requirement that a category of regulatory amendments get a hearing before they're promulgated, and the agency had been interpreting the category very narrowly because they didn't have the resources to do all the hearings required. And they were flat wrong on the statute; we didn't have a leg to stand on.

And presumably now they just won't do the amendments, even if there's something that needs to be changed, because losing the case didn't give them to resources to do the hearings. Like you said, hell of a way to run a railroad.

I've never seen a house on a railroad, but I once stayed in a hotel that made rooms from rail cars.

46: Right, at the end of the day the big problem here is that our constitutional design is a disaster. Presidential systems are dumb, bicameral legislatures are dumb, states are dumb and their borders are terribly drawn, and that's not even touching the really stupid stuff like the filibuster.

43 was me, of course. I don't know why my computer forgot me, except that it just does sometimes.

44b -- It all gets fixed, but then five years later some IG comes along and says 'hey you missed a deadline, give all the money back.' There has historically been a lot of corruption wrt HUD money, but it's about funneling money to cronies, not about these kinds of technicalities. Rules like when you need to do certain paperwork are important and you have to have them. You just have to measure out what the consequences of a 'violation' -- which is what, ideally, an alj would be doing -- rather than treating all violations as critical.

50 I think of those things as consequences of the real disasters -- slavery, conquest, genocide, obsession with private property -- which happened, can't really be undone, and here we are.

It all gets fixed, but then five years later some IG comes along and says 'hey you missed a deadline, give all the money back.'

Yep, no argument here. We get lots of directives from HUD that are directly contradictory to previous directives. It's a big problem.

Rules like when you need to do certain paperwork are important and you have to have them. You just have to measure out what the consequences of a 'violation' -- which is what, ideally, an alj would be doing -- rather than treating all violations as critical.

Yeah, part of the problem with HUD specifically is that they don't have a lot of penalties they can impose to get compliance. Clawing back money is the main thing they can do so they end up making it the penalty for all sorts of violations. (They can also make grantees operate on a reimbursement-only basis rather than advancing funds, but once they've done that it's no longer an option for future violations. We've been on a reimbursement basis for like twenty years based on some finding way back when that presumably has been fixed by now but there's not really an incentive for HUD to check.)

Hey, teo, send me an email and I'll send you the decision. It's DDC, so they can't try to hide from it. HUD filed an appeal, but when the appellate team got on board they quickly realized (a) the district judge was right, and (b) a DC Circuit opinion saying that would be seen by a lot of cities and counties, and HUD would have to start complying with the law. Appeal dismissed very early.

Will do. This is quite relevant to my own work. Hopefully we don't end up in a similar situation but if we do it's good to know there's a precedent out there.

Anyway, the OP article strikes me as somewhere between 'having the trains run on time excuses a bunch of things' and 'you know, those Khmer Rouge guys had a point.' Where one stands depends on where one sits.

So, somewhere inbetween genocidal evil and genocidal evil? Don't hold back on how you feel about this, now.

Me, I don't think relaxing procedural restraints on agency action has much to do with genocide. But maybe I'm wrong, and my primary client is just coiled to spring: once the rules loosen up a little, it's no more protecting northern long-eared bats and tiger salamanders -- it'll be all mass murder all the time.

Did you see The Simpsons Movie?

Thanks for the link in 37; it might suggest some resources in my own ongoing medical billing dispute. Three months out of surgery, not only have I not seen a dime in reimbursement from Anthem Blue Cross despite getting them to pre-approve six out of seven procedures, I keep getting surprise additional charges, the latest being $4,250 for a pair of those motorized wraparound stockings that massage your calves so you don't get blood clots. I currently have two separate chains of appeal going on and might need to open a third.

Between this and writing the New York Times to tell them why I was canceling my subscription (I know, should have done it long ago), it's a real banner day for dealing with institutions. Lucky I don't have to spend any time on my actual job.

Whirrrrr whirrrrr whirrrrrrrrrrrrrr..... hissssssss.
Sorry, flashback.

I bet I could find a pair of those socks for less than $4,000.

I have them in the garage, in their original packaging, ready to ship. Would you take them for $3,999?

I can go as low as $3,750.

"I think that's the risk you just have to take if you want a functioning administrative state -- restrain Moses-types through political action rather than through the courts."

The shorter version of that is: "Make America Great Again." * That is political action, and it's exactly how Moses didn't get stopped.**

By all means, make the bureaucracy work better. But also: Reduce the number of assholes in the world who need to be restrained by bureaucracy -- or who take advantage of it to gum up progress.

And while we're at it, ponies for everyone!

*I know I'm just echoing Charley's 56, but maybe the comparison to Trump is marginally less extreme. Anyway, even if the price is more bureaucracy, I'm glad I don't live in a rouge state.

**I don't actually know much about Moses, but Wikipedia suggests that his successes were political, describing one of his failures this way:

Only a lack of a key federal approval thwarted the bridge project. President Roosevelt ordered the War Department to assert that bombing a bridge in that location would block East River access to the Brooklyn Navy Yard upstream.

Again I say, hyperbolic much? Are you seriously taking the position that any reduction in the procedural rigor and complexity of the regulatory state is Trumpism?

59: Thanks, glad to hear that it might be useful.

patent protection has diminished substantially since its heyday in the late 1990s

This is true, but I wish the stupid framework that I have to use to determine subject matter eligibilty wasn't based on such stupid SCOTUS cases.

The link in 21 was very interesting.

One interesting comparison to these teams and the decision whether to rejoin their usual role after being on one of them, is when faculty become chair and then finish their term and there's a choice of whether to return to your old job or to move into administrative roles. Though the vibe their is more pessimistic (for either choice really) than the vibe in this article.

@67 Testify, brother!

65: I'm saying that Trumpism and the like are one result of relying on politicians to fix regulatory procedures, and I'll go a step further and say that the Niskanen gent comes pretty close to advocating directly for Trumpism. Democratic institutions need to be more like the Army or the police! Are you kidding me? And of course Trump himself is all about draining the swamp -- getting rid of those deep state bureaucrats who are screwing you over.

The Niskanen dude wants to talk about more procedures vs. less procedures, and that's the same stupid frame you get when rightwingers talk about liberals' belief in "Big Government." All things being equal, nobody is in favor of more procedures and more government. But people want government to do stuff and anything you do requires procedures and scale.

I'm altogether in favor of making the bureaucracy work better. (I put a specific disclaimer in 64!) But I think the Niskanen-type stuff fails to acknowledge that the rules are, in fact, the result of the American democratic-like process, and that the key problem is not the liberal over-reliance on rules, but the rightwing insistence on fucking things up -- making rules both necessary and necessarily poorly designed because the Republicans are writing the rules, too.

Big complicated countries generate big complicated rulebooks. Better can always be done, but bureaucracy seems like a part of human nature.

The Niskanen gentleman showed remarkable restraint in not quoting Shakespeare: "The first thing we do, let's kill all the lawyers." But the Niskanen dude utterly fails to acknowledge that trial lawyers are a blight on society precisely because Americans have declined the build the regulatory state that Europe has -- and regulation has thereby been privatized.

Now of course, you haven't adopted Mr. Niskanen's arguments. Making a specific proposal about a specific problem is exactly you do, and what the Niskanen intellectual fails to do.

Anyway, I just have to quote this from the Niskanen guy, not really because it's relevant, but because it's hallucinatorily stupid:

The end result might be the accumulation of arbitrary powers in the executive branch -- exactly the result that conservatives hope to avoid.

70. Possibly worth listening to the Ezra Klein podcast with one of the authors (transcript)

Nick [Bagley] is a liberal law professor. He trains young lawyers, and he goes, really, all the way with this arguments. One of his arguments here -- and we talk about it -- is that liberalism actually has a lawyer problem -- that one of its difficulties is that it is too dominated by the legal profession and the way the legal profession thinks.

...

[nick bagley]: So in practice, OIRA -- the Office of Information and Regulatory Affairs -- as it was used under the Reagan administration, became a device for thwarting pretty much any regulation, whether it had positive benefits or not. And the reason for that is you created a bottleneck. You made every single rule pass through a particular office, where there was only a couple of dozen reviewers who could actually dig into the details. And so these rules would get up to the office, and they'd just sit on people's desks for months, for years, sometimes purposefully, just never actually coming to see the light of day.

And so it's the institutional arrangement that we created to enforce compliance with cost-benefit analysis that ended up having the effect of just making it impossible for lots of agencies to do their jobs, even when they were adopting rules that benefited the public.

So I think that's the move that I want people to think harder about, which is -- I mean, the underlying commitments that we've got to public notice, to cost-benefit analysis, to accountability, to environmental protection -- those are all positive. But the institutions we create to enforce compliance with those can actually stymie government action in a way that can be inimical to those very goals.

@70 "But people want government to do stuff and anything you do requires procedures and scale."

Yes, but there exists more than one way to "do stuff" at scale. Presumably some ways are more flexible, predictable, and efficient than others (and I sincerely hope that we are not ceding those virtues to conservatives). Establish these virtues as desired goals. Evaluate the implementation of programs in terms of how well they achieve these goals. Refactor programs that fail to achieve these goals. Once you have done this for multiple programs, see if you can identify "dark patterns" that consistently cause problems.

Process matters?

@73
"Multiple witnesses said that Brown intended to taxidermy the foot 'as a reminder to wear your boots,' which one nurse described as 'weird.'"

If you were put into office by big business and want to thwart rules that interfere with big business, you create the kinds of bottlenecks that Reagan and later Cheney created. This isn't because someone wants or doesn't want rules in general: it's because big business wants profit, and doesn't like interference. Rules that would advantage big business never got caught in the net. Lawyers weren't thwarting good ideas: capital was.

I read the link in 21 and hoo-boy do they seem all-in on assuming that committees put together to reorganize a business are obviously right when they decide the business is inefficient and in terrible need of reorganization. Then I saw it was Harvard Business Review and I am guessing that is their whole gig. If the plebes weren't all horribly in need of a review by HBR types there goes half their raison d'etre. Not all who have gone through serial reorganization by eager new bosses seeing inefficiencies seem thrilled. Must be they love inefficiency? The point of the article was different, so my comment is a tangent to what was already a digression, but the tone still hit me like a ton of bricks. I am not in business.

74: That's a less- used process.

This is still very good: https://static.newamerica.org/attachments/4209-kludgeocracy-the-american-way-of-policy/Teles_Steven_Kludgeocracy_NAF_Dec2012.d8a805aa40e34bca9e2fecb018a3dcb0.pdf

pf, your 64 MAGA reference is so dismissive as to be outright insulting. I think you owe LB an apology.

Charley, you at least are directing it at Bagley, but it's still about as reductive to jump from "things could be less bureaucratic" to fascism/genocide.

I have a list of which of you are worse than Hitler, which only worse than Mussolini, and which are better than both.

Is it bad that I immediately thought "I hope I'm worse than Mussolini, but not worse than Hitler."

Yes, but not actually as bad as being worse than Mussolini.

79: I apologize if I failed to adequately distinguish between LB's argument and Bagley's. I tried to fix that in 70, but I take your point.

Bagley is a servant of what I have lately seen described as "radical centrism." In style, it reminds me of the sort of neoliberal economic arguments that I used to find quite appealing. Liberals just need to turn things over to the technocrats, who absolutely won't get rolled by rightwingers because at heart, at least on economic issues, we all want basically the same things, don't we?

I swear to you I did not make up this quote from Bagley:

The end result might be the accumulation of arbitrary powers in the executive branch -- exactly the result that conservatives hope to avoid.

More Bagley:

These aren't tasks for lawyers, with their fetish for procedural rules. They are tasks for legislators, managers, and policy experts. They are the ones who will drive real regulatory reform and -- perhaps -- build the government institutions that will allow us to cope with the challenges of the 21st century. The lawyers need to get out of the way.

And who is Bagley? Professor of Law, University of Michigan Law School.

How many of his "legislators" have law degrees? How many of the policy experts? What is his explanation for the failure of technocrats in the first place? It can't be that they relied on procedure -- legislators, managers and policy experts wouldn't do that. He's engaged in gibberish that removes all agency from malicious real-world actors and blames failures on the folks who are trying (in their own flawed way) to fix things.

Side note: Googling around, the NYT tells us that in the mid-60s:

Of the 535 members of the 88th Con­gress, no less than 315 are lawyers. Sixty‐six of the 100 Senators have had legal training, as have 57 per cent, or 249, of those in the House.

The ABA tells us that in the recent 117th Congress had 175 with law degrees

You know who doesn't have a law degree? I'll leave that as an exercise for the reader.

Niskanen isn't officially libertarian IIRC, but the people there definitely come out of that world and their recommendations reflect it.

The scene with the glitter bomb is just great writing.

I think, clearly, that Bagley's critique has some value. But I think it's mistaken to think that the problem is "lawyers". Like you say, you're going to have lawyers on all sides of everything. Whether regulations are good or bad, the person who wrote them was almost certainly a lawyer. I'm all for a strong regulatory state, and that means lawyers.

I think, and I think this is what Bagley is talking about even if it's not stated with clarity, that the problem isn't lawyers, it's litigation, and particularly "public interest" litigation where individuals or organizations can bring suit to enforce procedural requirements or to demand the right to decide how the regulatory state spends its limited resources. Courts are slow and incompetent at handling technical issues, and they are not fundamentally less vulnerable to being swayed by bias than administrative agencies.

I'm not saying that no state actions should be able to be challenged in court, but my bread and butter cases, where a nearby landowner sues to vacate a permit because they have a theory that some i wasn't dotted in the process of the issuance, shouldn't happen. I'm not saying that agencies are perfect, but running every dispute through the courts isn't a good way to get better results out of them.

The end result might be the accumulation of arbitrary powers in the executive branch -- exactly the result that conservatives hope to avoid.

GRRRRRRR What have conservatives ever done to earn the reputation that they hope to avoid arbitrary powers in the executive branch maybe that's what conservatives are like on, I don't know, Mars, but here in America -

To put it another way, there's a tendency to be suspicious and mistrustful of government action, and to trust the courts as a check on it. Working in this area, I do not trust the courts -- I think once a matter is in litigation at all, whether the ultimate decision is correct or incorrect, the situation has gotten much worse purely because of the wasted effort and delay. Is there a chance the courts will fix a bad agency decision? Sure, it happens sometimes. I'm not sure at all that it happens more often than vacating a good agency action.

79 LB is right in 9, and the fantasy of lessening the grip of lawyers and proceduralists is embraced by authoritarians everywhere. I've been clear that I don't have any problem with fixing specific places where the procedures are getting bad results. But the Niskanen guy wants Gordian knot solutions, and that's some dangerous shit. It really depends on who is holding the sword, but when you centralize power in a sword holder, you might be lucky most of the time, but sometimes you're going to get the wrong guy. We have an actual creeping fascism problem in this country. Next to that, rhetoric about the reign of terror under the procedural liberals is completely trivial.

Genocide in Germany and Cambodia was obviously world historic epically bad. But in neither place was this taking place independently of the other cultural and procedural steps. In Germany, states and the judiciary were both eliminated as separate power sources. They continued to exist, but only in service to the national leader. I don't have the same knowledge about Cambodia, but the sorts of people with law degrees were put in places where they weren't interfering with government projects.

I can't say anything about how LB spends her time, but the census is really important, and the proposed change was very very bad. As it turned out, the pandemic fucked up the census in Indian country, and undoubtedly in all sorts of marginalized areas, but at least the intentional sabotage of a constitutional requirement was turned back. You don't get the trade-off of getting rid of x mediocre thing and getting Y good thing. There's no one making deals, and no one who can be called to account. There are all sorts of things one might trade for the census, but none of them are actually on offer. Instead, the choice is between taking a big step down the road towards being an ethnostate, or not taking the step.

Tina Fey did it?

Spoiler alert.

One more episode, but I ran out of whisky. What do you mix with vodka? I have milk, iced tea, and tap water.

I guess I have ice.

And beer. Maybe wine.

88 I don't see agency decisions getting frivolously overturned here. The Forest Service loses often because they are so convinced they can't win that they barely try to comply with NEPA. (The FS case I was following for my trail thing: there was a statutory deadline to issue a management plan. Three years after the deadline, they started working on it, but then two years later they stopped. Two years after that, an enviro group sued them, and they had some bullshit technical arguments, and a non-bullshit standing argument (which lost) and no excuse at all for failing to either try to comply or get an extension. They ended up agreeing to a new deadline. I have very low confidence they'll make it. And they think the big mean judge is picking on them.)

The DC Circuit ruled 2-1 yesterday on a FERC case involving a solar facility in eastern Montana. The Trumpy dissenter was all 'just wait until the bosses find out how badly you're misapplying Chevron!' The trendline is in the exact opposite direction of improvement.

Tiramisu? Accidentally purchased vegan ice cream?

95: Do you think that complying with NEPA is making whatever the Forest Service is doing in relation to the trail better? I'm sure you're right that they're not properly complying with NEPA, but do you think that complying with NEPA is the best use of their resources? If your answer is "it's the law on the books and if Congress wants to change it they can, but until then agencies have to comply" that's certainly an accurate description of the situation. But I don't think, as a policy matter, it's a great use of government resources.

It seems like there should be a mechanism for making the loser pay when their legal arguments were obviously dilatory. Delay gets them what they want so if they use the legal system to accomplish that they should pay damages. Lost rent on developments? Hourly lawyer fees? Something like SLAPP rules but for abuse of lawsuits using regulations.

Well, there's complying and then there's complying. Part of the problem with all the litigation is that agencies try to defend against it by doing these huge NEPA documents that try to account for everything under the sun in hopes that they won't get sued for insufficient analysis. They take years to do and stretch to thousands of pages, and then of course the opponents sue anyway because they're acting in bad faith. Some sort of reform to change that process is important if anything is going to get done.

83: I think you're caricaturing Bagley's argument, but I'm also convinced that you and Charley Carp are correct that this isn't just an easy problem that can be resolved with a little common sense.

As I said above, I don't know what would be the easiest places to try to reform the existing process. However, I also think there are real problems. Just based on what I read, if I could pick one area in which to wave a magic wand and streamline the regulatory process it would probably be long-distance transmission lines: https://www.volts.wtf/p/transmission-week-how-to-start-building#details

For example, this does sound like a problem:

The interconnection process -- the process of connecting a new generator to the transmission network -- is currently run by RTOs on a "participant funding" model, which means the project developer must pay for any grid upgrades or new lines required. This despite the fact that new lines create benefits (in reliability, efficiency, and regulatory compliance) that are spread state-wide, even regionally. A recent report from Americans for a Clean Energy Grid (ACEG) compared participant funding to "charging the next car to enter a congested highway for the cost of building a new lane."

The process is currently a disaster. First, there's the free-rider problem: no developer particularly wants to shoulder the costs for broadly distributed benefits. Second, no renewable energy project developer knows in advance whether their interconnection will require grid upgrades; when it does, they often drop out, which means the whole interconnection study and approval process starts all over again for the next project in the queue.

Third, it's impossible to predict the location and size of power demand in five years, which is how long it takes to build transmission. And fourth, the one-at-a-time process foregoes opportunities to plan larger scale, multi-line regional projects.

The financing barriers, coupled with the risk and uncertainty of a long, multi-stage regulatory process, serve to deter investment and keep costs unnecessarily high.

97 I was unclear. The trail thing is a National Trails System Act problem, not a NEPA problem. Same judges, same agency ineptitude. There's an active controversy about how the trail should be managed in core grizzly bear habitat.

Their NEPA problem arises because they want to cut down large swaths of trees. One can say that the groups that sue the Forest Service are acting in bad faith, but they win fairly often, and it's because the government skipped over something important. Or played games with classifying roads.

100 The transmission financing problem doesn't sound procedural to me, but a substantive regulatory issue that should be addressed in a rulemaking. And maybe legislatively. (Any time that word appears, it means 'after 2024' because absolutely nothing good will come from Congress until then.)

Charley sent me the opinion in his HUD case and it seems obviously correct to me as a matter of law (with the caveat of course that I'm not a lawyer myself). HUD was trying to use a provision that applies to reallocation of unspent funds, which doesn't require a hearing, to claw back allegedly misspent funds, which does, and the court correctly decided against them. Doesn't have any bearing on the underlying issue of whether the funds were actually misspent, of course. As I suspected it does involve one of the programs I work with personally, but I think we're unlikely to run into this specific issue.

The "permitting reform" conversation does tend to elide the distinction between procedural and substantive reform, among other things, especially with the usual focus on NEPA, which is not actually a permitting process in any sense.

Thanks for letting me listen in on everyone's erudition.

Moby, the vodka might have been good to mix into the tiramisu at an earlier stage but probably not now that the dessert is done. Iced tea is a possibility. Or maybe just a shot glass? Na zdrovye!

102 The thing that's not in the opinion is that HUD has been doing exactly this thing for years, and almost no one ever called them on it. It's not Robert Moses bulldozing communities, but it is important in a constitutional order predicated on diffusion of power, that the components are held to the powers they have, and that there's a method for policing/restraining abuses of that power.

I always thought drinking vodka in a shot glass was too Russian.

105: This is the fundamental point of disagreement here. The current law is the current law and should be obeyed, so it sounds like HUD was doing the wrong thing and the decision was correct.

But "a constitutional order based on a diffusion of power" is a dumbass way to set up a government if you want to get anything done beyond endless, pointless, wasteful fighting between different centers of power. I understand that you believe that a government that can actually do things is the first step on a slippery slope to mass murder and concentration camps, but I really don't think your evidence for that is compelling.

This is the fundamental point of disagreement here.

Exactly.

We've taken very different lessons from the Trump years.

You want a government that can do good things and I don't want a government that can do bad things. Neither of us is getting what we want right now, although I think we did more good than bad over the last 2 years. But a government that can do bad things can and will eliminate all the good things it did previously when chance and whim coincide.

And, sure, there's a lot of space between DeSantis and Hitler, but (a) a DeSantis empowered to do everything he wants is already bad enough and (b) if you create an unrestrained executive, you're at real risk of eventually getting a Hitler, even if you have a couple of DeSanti first.

You want a government that can do good things and I don't want a government that can do bad things.

The two arguments against this which I found fairly convincing are:

1) If you believe that liberalism offers an appealing vision, you should think that a world in which both liberals and conservatives have the ability to act on their stated beliefs will convince people that liberal programs are worth having (even if people express skepticism in the abstract, having things actually accomplished will be persuasive).

2) A world in which the government can't do things is one in which all politics will be about culture war issues. Following point (1) we'd prefer a politics in which there was an expectation that campaigns would make policy commitments and governments would implement those commitments.

Yes, bad things will happen but, in the long run, it is a much better world in which to argue for liberal politics.

And, sure, there's a lot of space between DeSantis and Hitler, but (a) a DeSantis empowered to do everything he wants is already bad enough and (b) if you create an unrestrained executive, you're at real risk of eventually getting a Hitler, even if you have a couple of DeSanti first.

I think there's a lot of space between, "we should judge government based on its ability to accomplish stated goals; if it can't accomplish projects that have been approved by the legislature that is a reason for concern and should be a prompt to re-examine" and "we should have an unrestricted executive."

They are both directionally similar (compared to the status quo), but it should be possible to argue for the former without endorsing the latter.

59: Kaiser Family Foundation has a Bill of the Month Segment. Maybe, if you felt comfortable, you could e-mail them your story.

What I don't get, Charley, is that you give movement Republicans enough credit to see that they aren't about deregulating no matter the circumstances, but are throwing out regulations they don't like (environmental) and imposing new horrific ones where they want (anti-woke), but here you can't accept reformers might want to test everything and hold on to the good, and you call it "the unrestrained executive" erasing the distinctions you are correct to observe when the movement is on the right.

We don't actually live in a world where government can't do things. It does all sorts of things, good (infrastructure bill) and bad (war in Iraq). These require a degree of consensus that many folks are uncomfortable with (or, more correctly, find inconvenient). Let's reduce the amount of consensus we have to have to do things isn't a 'liberal' vision.

You don't get to have a system where we're reducing the amount of consensus needed for good things but increasing the amount of consensus needed for bad things.

I don't think *you* want tyranny, Minivet! I know your motives are correct. I just think the system you want is easier for the bad guys to hijack. Why am I afraid of this? A huge movement in our society is hoping and working for exactly that outcome.

I'm totally on board with correcting abusive inefficiencies: the NY system where one court gathers facts and another issues opinions seems dumb. Tightening pleading and standing in procedural statutes is sound, so long as you leave the way open for legitimate challenge. Bonding requirements for injunctions could be used to good effect (or ill). Sanctioning actually frivolous claims.

NickS, I don't think we have culture war politics because government can't do things. I think this is a total red herring. We have culture war politics -- and have had for decades -- because large swaths of people are uncomfortable with increased rights for formerly disadvantaged people. Yes, the people who don't want infrastructure development have found that racism and mysogyny sell to help their cause. But it's not an either or proposition, not at all.

Let's reduce the amount of consensus we have to have to do things isn't a 'liberal' vision.

Yes, yes it is. A government that can only do things for which there is consensus not only of a majority of the electorate but also of a series of arbitrarily chosen minority veto points is a government that cannot accomplish liberal ends.

Echo 116. Same as the filibuster.

And there are a ton of countries that are as democratic as we - more - with much fewer veto points for executive action.

118: some are becoming less democratic every minute -- see Israel.

It's odd how everything is the opposite there - the fascist-adjacent government is trying to strip the power of the judiciary, and the opposition laments the lack of a constitution.

I just don't think it's possible to look at the world and say "yeah, a parliamentary system is more likely to end up fascist than the US system." In fact, the reverse is true. Over and over again, presidential systems are far far more likely to become right-wing dictatorships.

Democracy works best when parties who win are able to actually do what they want to do and people can vote them out if they don't like it. Instead we get these weird dances where Republicans pretend that somehow Washington disfunction is the problem, and not that they can't govern. Let the winners govern, and then go down in flames in the next election if they do crazy things.

My first test for any tinkering with the system is 'how can the bad guys hijack this'? Hugely increasing the number of judges in California (and New York?) while having arbitrary short limits* on the time for particular actions cuts both ways evenly.

* If you don't win a federal contract, you have two** places you can go: GAO or the Court of Federal Claims. GAO gives you an automatic stay on the winner's contract, but the case is required to be decided in less than 4 months. It's low cost very deferential review, but if the government has made a mistake, and that mistake was material to you not winning the contract, it gets set aside. At the COFC, you have to get a TRO/PI to stop the other contract from going forward, which means you have to spend buckets of money upfront. It's not uncommon, though, that they'll grant a tro then merge the hearing for pi with the merits and have the hearing 30-40 days from filing. Appeals from grant/denial of a pi are already priority items in the federal system, so if you've gone to COFC, and lost, appeal isn't going to drag. GAO decision are not reviewable -- you can go to the COFC, but you're very very unlikely to get a tro/pi, and once the awardee starts, courts are not going to set aside a contract absent something truly shocking.

An adequately staffed judiciary could do this sort of thing with all sorts of infrastructure/housing issues.

** OK, it's actually 3 -- you can file a protest with the agency. This buys a few days, but only very few. A week or two at the outside. But it does let them correct obvious mistakes (e.g. that case I had 15 years ago where the military decisionmaker couldn't tell that "Korea" on the official list of countries in the Iraq War coalition means the country most of us call "South Korea" and not some other place.)

120 I totally agree that if one was designing a new system from absolute scratch -- suppose there was an international effort to colonize Mars -- our system wouldn't naturally suggest itself. The US is not going to adopt a parliamentary system and we're not going to abolish the Senate. We're way more likely to colonize Mars, and we're not going to do that either.

I saw something I liked on the internet the other day: paraphrasing, one should separate the problems where solving 80% of the problem means that 80% of the benefits can be realized, from those where solving 80% of the problem means that 0% of the benefit can be realized. And recognize that in that latter class if you need to get to 100% to realize any benefit and the last 5% is impossible, you're wasting your time.

There's nothing wrong with wasting time on Unfogged, of course!

No benefit until the problem is 100% solved isn't a recognizable description of the issue we're discussing. Procedural barriers to action are multiple and specific -- every barrier removed is an improvement. We're never going to, e.g., get rid of the Senate, antidemocratic though it is. But getting rid of the filibuster is possible, and would be a huge improvement in itself. And so on, for every statute that gives rise to unnecessary litigation or imposes unnecessary procedures.

123 You and I are not disagreeing about this. I think a lot of things can be improved without radically changing the balance of power. I think separation of powers is more important than you do, but there's a lot of changes that can be made that don't tip it so much that I'm concerned.

None of them can be made by Congress in 2023/24, and nothing any good is going to come from the US Supreme Court. Obviously, states have to be the laboratory here, and the changes you need have to either be made by the legislature or by the Court of Appeals. My guess is that most if not all of it has to come from the former.

And that means pandering to people like me who worry about excess power, to lawyers in general, to people with power under the current system. As I understand it, the NY legislature is in a way better place right now than in was 5 years ago . . .

Getting rid of the filibuster would be a huge improvement when there's a Democratic majority. Not so much when the other guys have the majority. We all expect them to get rid of it when it becomes a problem, and I think that's probably right. The future has ways of not playing out exactly as we expect, though, and there may be Republican senators who balk at removing the filibuster to allow a federal ban on abortion, or criminal penalties for doctors, or whatever else they decide they get a chance to try.

This isn't really an issue in 2023/24, because there's nothing that's going to get filibustered that would get through the House anyway. Maybe we'll have a trifecta after 2024, and it'll be time to make that change. And maybe this time, we'll have the votes.

Hurry up and finish MM to Jimmy Carter for he is not long for this world.

The world will be worse for it.

Domestic politics is not my specific area of expertise, but I'm inclined to side with Charley here, particularly when I look at what countries such as Poland are trying to do with their courts. I won't claim that the current balance is ideal, but I'm willing to put up with some barriers to doing good insofar as they might also at least slow down opportunities to do bad.

I'm nervous about minority rights and how strengthening majoritarian ability to changes policies could weaken that.

112: Now I know what I did not before, which is that Kaiser Family Foundation has nothing to do with Kaiser Permanente and indeed may have opposed interests. Thanks for the tip!

Now you know how Kaiser rolls.

Charlie's position presumes a lot more faith in the courts than I have.

To some extent this is a "where you stand depends on where you sit" situation. Charley is a lawyer in private practice who often sues the government, and LB is a government lawyer who defends against those sorts of suits. They're seeing the same system from different perspectives and their views of its strengths and weaknesses reflect that.

132 In Montana, we have a pretty good Supreme Court and an excellent federal bench. State judges are a little more mixed, but we don't have many ideologues. They're usually pretty smart lawyers.
Our legislature is deep red shit, and our governor isn't much better. City and county are quite blue, and so the legislature is constantly trying to cut down on local power to do things like try to get more affordable housing, or require masks during a pandemic, that sort of thing.

Where I worked before, the judges were also pretty good. The DDC and the DC Superior Court judges are generally excellent. The DC Circuit is a mixed bag because DC doesn't have senators, so Republican presidents reach far afield to bring in whackos without local or judicial experience.

Courts (especially the USSC) are far from perfect. You'd have a tough time, though, convincing me that I should have more faith in Kevin McCarthy. Or Ron DeSantis.

Today is the anniversary of Roosevelt signing Executive Order 9066, for the internment of Japanese Americans. The courts failed on that, but so did everyone else. That judicial failure wasn't baked in, and they did get it right later, well before the executive did.

In terms of US history, that was the epitome of a government that gets things done. When we look back on the incident, though, we don't think that it was a shame that courts were allowed to stand up to the president, but that they shrank from doing so at the very moment that it needed to be done.

So, the courts can't be counted on when they are really needed.

There's also gotta be some factor here of smaller states getting disproportionate federal resources so the court systems are less of a complete clusterfuck. If each borough was its own state and had its own court system, some things would be more of a disaster, but the courts would probably be less overwhelmed.

136 Yeah, not like Kevin McCarthy or Ron DeSantis.

137 I sometimes go to the Idaho Bar annual meeting -- I'm a member -- and there's certainly resentment there about how Montana has 3 federal judgeships and more populous Idaho has only 2. If only Idaho sent people to Congress who believed in government! There isn't some kind of system here, it's all up to Congress. Looking at the federal vacancies, the pattern is clear: Texas, Florida, and Louisiana aren't doing very well at getting nominees out of the administration. Probably because their senators would as soon have DeSantis fill those slots in 2025.

It's not a federal funding problem that precludes California from having enough judges, but more of a Prop 13 and related measures problem.

The Central District of California has a population of 19 million people and 28 judgeships. Four are vacant. We have 1 million people and 3 federal judgeships, no vacancies. You file a federal case here and, when you go to the initial scheduling conference, the judge will not only have read all the pleadings, they'll also have read their clerk's memos on the controlling precedents. Adequate staffing is a big deal.

LA Superior Court isn't quite as understaffed, but a 25% increase in judgeships would make a real difference.

(For comparison, the SDNY has under 6 million people and also 28 judgeships. Which makes sense because there's a lot of commercial activity in NYC that's disproportionate to the population.)

It's one of the great ports.

The EDNY has a couple million more people than the SD, but only 16 judgeships. Maybe George Santos can do something about that!

141 Yeah, not like Los Angeles. Or Brooklyn.

I didn't realize Brooklyn was separate in federal courts.

SDNY does tend to think it's in charge of the whole world.

I guess I also assumed that if I ever sued Ina Garten in federal court, it would also be SDNY. But I should look up stuff like that first, because I was wrong.

EDNY is backed up. A couple of years ago, I waited for two years for a decision on a preliminary injunction motion. I was opposing it, and there wasn't a TRO in place, so no skin off my nose, but that shouldn't ever happen.

As long as she keeps things peaceful, it's not a problem for me either.

138: Probably because their senators would as soon have DeSantis fill those slots in 2025.

Which Democratic senator is the one keeping the blue-slip rule in place?

In the abstract, I can see that "Senators should approve of federal judges in their state" might be a useful way of bringing local knowledge into the process of lifetime appointments to the federal bench. In practice, we've had a decade and a half, maybe two decades of "Republican senators don't approve judges nominated by Democratic presidents" paired with "When Republicans hold the White House and a majority in the Senate, this rule does not apply." It's not so much procedural liberalism providing a veto point (though there is something of that) as unequally applied rules producing a partisan outcome.

Anyway, I doubt that this is a rule the Unfoggedtariat disagrees about getting rid of.

OT: I didn't even know Facebook had verified accounts with check-marks, but apparently, the check-marks now cost $12/month.

150: Zuckerberg apparently likes what Musk is doing with Twitter.

Yeah, not like Kevin McCarthy or Ron DeSantis.

I don't like either of those dudes but both have been elected and are in some sense responsible to the will of the people. When they fuck up too much, they and their party will lose elections and be replaced by office holders who will be in a position to reverse their bad policies and replace them with better ones.

Meanwhile, Brett Kavanaugh was never elected, is accountable to nobody, and will be making shitty laws from the bench for the next 30 years.

Question for the legal Mineshaft: Can the Georgia grand juror get in trouble for her comments on jury deliberations, and can her comments damage any case the DA might bring?