The Science of Regulation

For the last sixteen years of my life, the start of Fall coincided, more or less, with a loss of freedom. Gone were the summer days filled with cartoons, playdates, or (as I got older) debate work and research. This time was different. My fourteen-day quarantine ended on Monday, so I finally got to go out and explore. London, as I found out, is a beautiful place. There was the expected stuff: cars driving on the “wrong” side of the road (it turns out that looking the correct way while crossing the road is, in fact, important!); red telephone booths, majestic churches, and statues of old dudes; double-decker busses, public art, and impatient city-denizens hurrying about.

Telephones! Cool buildings!

An old dude! (Surgeon)

Old dude 2! (No idea who!)

Public art!

There were also plenty of expected-but-still-affecting sights: a pub founded before my country or the incredible façade Royal Courts of Justice. And then there was the unexpected: the tubes on an old, brick building that were protected by spikes and special paint to prevent climbing; a runner yelling “go Blue!” when passing by me because I was wearing my Michigan hoodie; the juxtaposition of a deviously happy and a terrifyingly angry demon face on a random building (which I believe was a law office?); a small corridor with a history of London’s news presses. I expect I’d find some of this in any American city. But I think the anticipation of being in a novel place helps keep my eyes open, and the freedom that comes with being a graduate student means I’m more able to explore the nooks and crannies of the city.

Pub established in 1602(!!)

Royal Courts of Justice

History all in the open :)

No climbing, apparently

Scary faces

LSE art

Yesterday was also my first day as a graduate student. I’m starting at LSE (or, more properly, The London School of Economics and Political Science™), and my degree is in Regulation. When I tell that to people, I usually get two responses: (1) “what does that mean?”; or (2) “ah, very cool . . .” (As one of my friends put it, “the thing about that degree . . . is that it sounds so boring.”)

I’m not going to try to convince you that regulation is a cool subject, but it’s worth thinking about the first question a bit. In the literature, there’s a healthy debate about what “regulation” means, but its core (thinking about regulation as a “radial category”) has to do with governmental attempts to mold the behavior of certain actors (often market actors, e.g., businesses or consumers) through law. From there, we can think about all sorts of other kinds of regulation that deviate from that definition: regulation of private, non-per-se-economic conduct (e.g., laws banning drinking alcohol in a public park); the use of tax incentives or the allocation of certain rights rather than coercive legal rules to achieve some public policy goal; the application of legal rules to public actors (e.g., in a system of federalism, national limits on states’ discretion, such as with the Voting Rights Act of 1965); and so on.

The problem, of course, is that at a certain point, the study of regulation becomes the study of government (or, if you believe that regulation doesn’t have to be state-centric, it becomes the study of all exercises of power). As I learn more about the field, I’ll be curious to see how this program deals with this fundamental issue.

There’s another aspect of regulation, though, that I thought I’d spend some time thinking through. Our broad definition of regulation suggests that it’s about techniques — about how to achieve some goal. Its disciplinary roots are a mix of social science (economics, political science, sociology) and more applied fields (business, public administration, law). Each of these fields, I suspect, has gone through a robust debate about the extent to which it ought to strive for scientific rigor versus some kind of methodological pluralism that accepts not only theory-driven hypothesis testing but also other kinds of knowledge. And I don’t think that debate is over: even from my Pomona politics professors, I could sense there were meaningful differences about the extent to which they saw themselves as scientists searching for some kind of objective Truth versus commentators bringing to light new ways of thinking about government.

The appeal of social science is, I think, easy to recognize. With systems as complex as government, we need ways of simplifying our analysis. The gold standard of the scientific method is experiments; we vary one independent variable to observe changes in some dependent variable. That method tells us what to look for and, in doing so, helps focus our study. Additionally, discussions of government are almost inevitably value-laden, for government inevitably affects each of us. Methodological rigor helps prevent subjective beliefs from biasing our conclusions.

This is all good and well if we were only talking about certain subfields of political science whose purpose is exclusively descriptive — to understand the workings of government. Regulation, though, is applied to a certain degree; we are concerned not only with how and why the government regulates, but to what extent that regulation effectuates its purpose so that we may regulate better. Can the study of regulation be exclusively scientific?

My instinctual answer is “no,” but I want to address that question by referencing an essay we had to read for one of my classes: Woodrow Wilson’s “The Study of Administration” (1887), a foundational text in public administration and political science.

For Wilson, questions of “administration” (which, for our purposes, is similar enough to “regulation”) are wholly separate from questions of politics: Administration “is part of political life only as the methods of the counting-house are a part of the life of society; only as machinery is part of the manufactured product.” Politics provides principles and purpose, but administration concerns the realization of those principles. Politics “sets the task for administration,” in other words, but “it should not be suffered to manipulate its offices.” This is a technocratic view of administration — the idea that the job of an administrator is merely to translate, to get, in Heather Gerken’s words, from “here to there.”

Wilson’s faith in the separation of politics from administration is, I think, evident in his view of history. Earlier in that same essay, Wilson claims that the history of Western constitutional development comes in three phases: (1) a period of absolute rule with absolutist administration; (2) a shift to popular control, where debates over administration are submerged over broader constitutional debates about the locus of sovereignty; and (3) once democracy has settled, the re-emergence of administrative debates through the adjustment of administrative principles into a democratic framework. Notice that in such a worldview, politics and the study of administration (or government, or regulation) are cleanly separable not only analytically but temporally. We do not reach phase 3 until democracy has been consolidated. But after that, as Wilson suggested of his time, it becomes “harder to run a constitution than to frame one.”

We might well consider whether we, today, are in phase 3. We have witnessed the broad erosion of constitutional norms recently with the rise of a populist, outsider president and with ever-stronger forces of negative partisanship. But, as Julia Azari has argued, what might matter is not the norm — norms are inevitably malleable — but the values undergirding them. We see basic commitments to the equal administration of law questioned: Our president seems intent on making it harder for anyone opposed to him to vote. He seeks to manipulate the use of state power for his own interest and against those opposed to him, for example, in sending federal personnel in places with “Democrat mayors.” He openly refuses to commit to a peaceful transition of power and has long suggested that he should have more than two terms as president. Our constitutional foundations do not seem as firm as Wilson would have anticipated.

I want to emphasize, though, that this is not only a critique of Wilson for being teleological. Wilson seems to identify only one direction that liberal democracies can advance in, and I think that’s wrong as evidenced by our current politics. But Wilson is also wrong, I think, in believing that those three phases are meaningfully distinguishable. Here, then, his error in historical analysis parallels his error in separating administration from science. To “run a constitution,” I think, is to frame it; in Madison’s memorable telling, law becomes “liquidated and ascertained by a series of particular discussions and adjudications.” Values that are determined through politicking mean little until they are applied by our institutions — by the sausage-making process in Congress, the refinement of court challenges, and the discretionary choices of executive agents (including the tweets of presidents!). Regulation and administration, in this sense, are both continual processes that interplay with politics. Politics through legislation may provide the initial conditions, but politics can (and should) refine regulatory and administrative actions over time: we see this in congressional oversight of agencies or presidential administration, for example.

Wilson, I think, nods at the interlocking nature of politics and administration, even if he didn’t recognize it. In his time (according to his telling), French and Germanic scholars were at the cutting edge of administrative science; the English and Americans had not systematically studied the subject. For him, there were principles of administration that could be learned from foreign contexts because “all governments have a strong structural likeness; . . . if they are to be uniformly useful and efficient, they must have a strong structural likeness.” But those principles couldn’t be simply transplanted in America: “Arrangements not only sanctioned by conclusive evidence elsewhere but also congenial to the American habit must be preferred without hesitation to theoretical perfection. . . . The cosmopolitan what-to-do must always be commanded by the American how-to-do-it.” Doctrine, scholarship, tenets of government — they all exist “out there” waiting to be implemented, on the ground, through a process of translation.

Wilson used scientific terms for that process of translation: “We have only to filter [the science of administration] through our constitutions, only to put it over a slow fire of criticism and distil away its foreign gases.” But that “filter[ing]” is the process of “read[ing] all fundamental differences of condition into” the “essential tenets” of administrative science; it is the process of identifying who we are and who we want to be, in order to understand how we ought to make our decisions with the benefit of foreign insights. We liquidate our core ideals — we clarify our politics — through administration. Politics inheres in administration and in regulation, which is why I think useful studies of administration and regulation cannot be distilled into science.

* * * * *

Rose: Walking around central London, as you can probably guess, was a very fun time. But also, I watched 500 Days of Summer with one of my friends, and I forgot how good of a movie it was — especially with my friend’s incisive post-movie commentary.

Bud: I’m optimistic about my courses at LSE. The professors all seem very inviting and accessible, and the reading lists (although a bit intimidating with the amount of reading) look fascinating. Unfortunately for you all, though, this probably means that I’ll have more posts like this one, where I think through my course readings. Also, I might be going to STONEHENGE this weekend!!!

Thorn: I got to LSE’s campus relatively early because of a 9:10am COVID test (I tested negative!) but couldn’t do on-campus registration until 10:50am. I was hoping to spend some of that time exploring the library, but, unfortunately, the LSE library is mostly closed for browsing (and was completely closed for me since I didn’t have my LSE ID yet). But I suspect I’ll have plenty of time to spend in the library over this academic year, so I’m not too bummed out.

Potential future topics:

• Something about the history of the press in London

• How classes at LSE differ from at Pomona

Our Constitutional Icon

This last week witnessed Constitution Day and then, in a gut-wrenching moment of cosmic irony, the passing of Justice Ruth Bader Ginsburg — just after she had been honored with the National Constitution Center’s Liberty Medal. Her death will ignite (has already ignited) a political firestorm, but I want to set all of that aside to think about why her death hit so hard — for me and I suspect for many of my friends. I’m going to approach this in a tortuous path, though, by starting with an exchange between Thomas Jefferson and James Madison.

Amidst a debilitating illness that struck him in the beginning of September 1789, Jefferson stumbled into an enlightened idea, one that he supposed “to be self-evident”: “The earth belongs always to the living generation,” and thus, “the dead have neither powers nor rights over it.”

Suppose, Jefferson imagined in a letter to Madison, that each generation of humanity entered and left the world at the exact same time. As each generation would “come on, and go off the stage at a fixed moment . . . [t]hen I say the earth belongs to each of these generations, during it’s [sic] course, fully, and in their own right.” No debt, no law, and no contracts made by earlier generations ought to encumber the latter generations. The “only difference,” Jefferson maintained, between such a world and our world is that our generations “have one constant term, beginning at the date of their contract, and ending when a majority of those of full age at that date shall be dead.” The length of that “constant term”? Nineteen years, according to his elaborate but questionable calculations. And under this principle, the laws of those who came before us are “extinguished then in their natural course, with those who gave them being. . . . Every constitution then, & every law, naturally expires at the end of 19 years.”

Jefferson’s idealism was counterbalanced by Madison’s conservatism. The core idea, Madison wrote in response, “is a great one, and suggests many interesting reflections,” but, alas, it is “not in all respects compatible with the course of human affairs.” Madison’s reply comprised four crisp objections to Jefferson’s airy proposal, but I want to note only the first two arguments.

First, he remarked, revising a constitution every nineteen years might render government “too mutable to retain those prejudices in its favor which antiquity inspires, and which are perhaps a salutary aid to the most rational Government in the most enlightened age[.]” As institutions age, people venerate and cherish them for their endurance. Second, though Jefferson thought the living ought not be burdened by the debt of the dead, Madison also pointed out that the living can benefit from the actions of, and related debts incurred by, the dead. “[D]ebts for repelling a conquest, the evils of which descend through many generations,” he suggested, were worthy debts that future generations ought to repay.

Jefferson and Madison were close friends and political allies, but this exchange evinces a fundamental difference between the two: Jefferson was partial for radicalism, whereas Madison counseled deliberate hesitation; Jefferson wanted decisiveness, Madison preferred constraint and deference to tradition. These are irreconcilable values. But they are both in our constitutional heritage, and their conflict undergirds our politics.

One answer to the conflict is to assert the predominance of tradition. Consider a recent tweet from Senator Marsha Blackburn: “We will never rewrite the Constitution of the United States.” Beyond the obvious responses to the statement, it’s worth recognizing that this statement is nevertheless good politics; Americans generally, and conservatives especially, have a profound pride for the Founding generation and its handiwork. There are, of course, the obvious moral critiques of that generation, as well as indictments of the actual functionality of their work (for example, the original system of electing the President and Vice President was completely unworkable!). From the historical perspective, though, there’s also a consistency indictment of Blackburn’s romanticism for the Founders. That is, it’s not at all clear that the Founders sought to cement their charter and render it unchangeable: After all, they fought a war to displace a seemingly wrongful order; they created a constitution that failed after less than a decade and replaced it by unlawful means; and they repeatedly amended the 1787 Constitution almost immediately after its ratification. That generation, of course, was not single-minded — for every revolutionary Jefferson, there was a conservative Madison. But self-assured in their omniscience and fearful of change they were not.

A second response to the conflict, then, might be the opposite: a politics of revolution. It could very well be that there’s an itch for fundamental change among Americans; discontent with the federal government is consistently high, while trust in the government is low. Pew’s data also show, though, that perceptions of governmental performance are highly correlated by partisanship, which might be evidence that the system works even if there’s little cross-partisan trust. That is, if half of the country is basically happy with the government when its party is in power, then it seems implausible that revolutionary politics could succeed; perhaps Obama was correct when he said that “the average American doesn’t think we have to completely tear down the system and remake it.”

There is, I think, a third response to this conflict, and I think this third way can help us understand Justice Ginsburg’s legacy. Madison observed that antiquity inspires a positive prejudice, and we see this with the Constitution and its celebration today. Moreover, that document acts, in Alexander Bickel’s words, as “the symbol of nationhood, of continuity, of unity and common purpose” even “without particular reference to what exactly it means in this or that application.” That partisans often resort to constitutional discourse suggests both an inability to come to consensus about what the meaning of the text is and a cachet associated with its invocation. We admire something, in short, that we can’t even agree on.

Bickel thought that the Constitution needed to be “concretize[d]” in order to be a compelling symbol of national unity, and he saw that as the role of the Supreme Court. For one, the Court applies the Constitution and thus acts as a kind of constitutional steward. For two, the Court by nature is slow to change: “It is never, like other institutions, renewed at a single stroke.” Life tenure guarantees that the Court will always look somewhat continuous, which promotes the idea that it is “above the fray” and maintaining a constitutional heritage and tradition.

Here we can return to Justice Ginsburg. Her mere age and continual presence on the Court garbed her with the positive “prejudice[] . . . which antiquity inspires,” but her life-long campaign for sex equality under law imbibed her with a persona of radicalism. Thus, she came to represent a particular constitutional imagination, one that, in her words, was more “embracive” of those originally excluded in 1787. Just like Thurgood Marshall was once known as “Mr. Civil Rights,” Justice Ginsburg symbolized an enduring commitment (spanning over half a century!) to substantive equality and a stubborn capacity to hold on in the face of ethno-nationalist backlash. It’s telling, I think, that pieces are being written about how American democracy “rested on her shoulders.” For many, Justice Ginsburg herself was a constitutional-moral promise — her life was testament to the idea that it’s possible for an ingenious, determined person to succeed in dismantling discrimination and then rise to the height of the legal profession, serving as a kind of Platonic guardian on the Court for nearly three decades as our bulwark against retrenchment.

Her passing thus represents more than just the loss of a great leader and champion for human rights. It also feels like the failure of liberal progress itself. While holding our collective breath in the face of ever-more-scary reports of her illnesses, we almost deceived ourselves into believing she wouldn’t — couldn’t — pass away. For the Notorious RBG, cancer and Donald Trump alike seemed to be no match. Same, too, with a giant like John Lewis. They were living testaments to the fact that progress through constitutional politics not only could occur, but would and did occur. To lose them in such a dark time must feel ominous, even for the least spiritual among us. For in a very real sense, we’ve lost our moorings: those whose very presence assured us that, in our system, right makes might; those who brought us closer to that more perfect union founded on self-evident truths. We’ve lost those better angels of our nature at the time when we needed them most.

Justice Ginsburg, I think, would find these thoughts silly. I don’t think she had time for despair, nor was she interested in it. But she was optimistic about the future of our constitutional order:

“Our country has gone through some very bumpy periods. But, I’ll tell you the principal reason why I’m optimistic: It’s the young people I see. My lawyer granddaughter, my law clerks, are determined to contribute to the good of society. And to work together. So the young people make me hopeful. They want to take part in creating a better world.”

That’s our burden now. For “[t]he earth belongs always to the living generation.”

* * * * *

Rose: Because I’m under quarantine, I had a lot of time to catch up with old friends and to have long conversations with my new flatmates. It’s all been very fun, and the first half of quarantine has gone by surprisingly quickly. (On the flipside, though, I haven’t really been productive at all!)

Bud: Quarantine ends in less than a week, so the next post should be filled with pictures of London! Also, orientation has begun for LSE, so I’m beginning to learn about my coursework and meeting my classmates. I’m cautiously optimistic about it all: I have no idea what the academic environment will be like, especially given covid restrictions, but the reading lists all look interesting and thought-provoking.

Thorn: See above.

Potential future topics:

• When do (or should) we call a truth “self-evident”?

• How should I explore London/the UK? (I’d love advice, by the way, if y’all have any!)

• The Greenham Common Women’s Peace Camp — I learned about it through a public lecture on Thursday, where a bunch of archivists were discussing the process of creating history.

• Islington, the district of London I’m living in.

Arrival and “Escaping History”

Yesterday morning, I arrived in the UK. Rather than bore you with the details of a ten hour flight, moving into my flat, and fighting to stay awake to beat jet lag, I thought I’d just attach a few pictures.

A smoky departure, PDX

A CASTLE(!!) outside London

Spa Fields, right by our flat

My messy, newly moved-in room

A lovely kitchen :)

With the rest of this post, I want to spend a little bit of time sketching out a plan for this blog and what I hope to do with my two years in Britain.

I named this blog “Escaping History,” paraphrasing lovely language from a speech by Abraham Lincoln. Addressed to Congress in the last few weeks before he officially issued the Emancipation Proclamation, Lincoln admonished: “Fellow-citizens, we cannot escape history.” The leaders of the day, Lincoln wrote, “will be remembered in spite of ourselves. . . . The fiery trial through which we pass, will light us down, in honor or dishonor, to the latest generation.”

Leaving for the UK felt like an escape from the fires burning in the United States. In a literal sense, I spent the last few weeks (between time in the Bay Area and in Beaverton, OR) surrounded by wildfires. In the more metaphorical sense, our politics feel rancorous and splintered; our institutions seem inapt in responding not only to present, ephemeral crises but also enduring, inherited crises. I feel like I’ve left my country in a momentous time, where profound change and rejuvenation could happen in light of these fires but where continued crisis also seems likely.

There’s a privilege with escape. It’s possible for me to leave and find peace. But I wanted to invoke Lincoln because I don’t think it’s a full escape. History traps us. Lincoln was writing in the forward sense: We, one day, will become history, and our actions will be judged by those who come after we’re long gone. But we’re also products of our history, bound inextricably to the past. Physically escaping to another country is partial escape when my communities tie me to the United States. There are few places where I feel like I was grounded, and I think I left parts of myself in them: the departments and town halls in Claremont, the church and office buildings in DC, the homes in Beaverton, and the high school in Austin. Attending an elite college — which, as Patrick Deneen once observed, selects for students who can thrive after uprooting their lives — helped me understand the importance of where I came from. One purpose of this blog, then, is to think through new experiences and new places in light of old memories. Perhaps it’s trite, but I’m hoping to compare the places I visit with the places I’m from. (I can’t help but wonder if this will be a silly endeavor; as one of my good friends recently joked (?) to me, “comparing things is never as fun as it sounds.”)

From a less personal perspective, societies, governments, institutions — they’re also trapped by history. In my politics classes, we read about Italian regions whose twentieth century economic trajectories were shaped by the presence of medieval social institutions hundreds of years earlier. We read compelling explanations of contemporary racial-partisan politics in the American South tracing to the location and population of slaves in 1860. This kind of path dependence is particularly important in the context of the law, which develops through accreting precedent. In the constitutional law of habeas corpus, for example, judges and scholars have looked to thousands of habeas writs issued between 1500 and 1800; they’ve written hundreds of pages on the English Habeas Corpus Act of 1679; and they’ve analyzed the history of the Constitution’s framing — all to answer a decidedly contemporary question about law-of-war detention of non-citizen, suspected “enemy combatants” held on land formally owned by Cuba but leased to the United States. History flits throughout our law. As I continue to learn more about the American Constitution, I’m hoping to use this blog to think through the British history that came to be built into American institutions.

One last comment on the name of the blog, turning back to Lincoln: History is inevitably linked with morality. One reason might be that we often treat history as didactic. We study the past to avoid making certain mistakes or to gain guidance on how to live The Good Life. Another reason is that we’re constantly feeling history’s effects. In the imagined state of nature, we came from nowhere and feel no obligations beyond those which we derive from our decisions about how to coexist with others. Our reality, though, is plagued by decisions made before us. A life lived under the assumption that we can exist merely in private, tending to our own matters (“I have a right to do as I wish so long as I don’t infringe on others’ rights”), seems to me wrong given the duties imposed on us by our collective past, above and beyond our individual histories. A third purpose of this blog, then, is to help me think through those moral duties and my own place within them.

Those ideas are, I think, pretty lofty. But my hope is that those three goals — (1) comparing the UK with the US; (2) thinking through the relationship between history and law; and (3) reflecting on moral duties in relation to history — will push me to explore and maximize my time in the UK, both by reading more and traveling more.

Two other things in this already-too-long blog post. First, I figure I’ll do a “rose-bud-thorn” at the end of each post as a quick summary of my week beyond the more thematic blog posts. (Rose = something positive that happened, bud = something I’m looking forward to, and thorn = something not so great or a challenge.) Second, I think I'm going to note various questions I'm pondering for potential future blog posts; let me know if you find any of them particularly interesting, and I can make sure to follow through with writing it.

Rose: On the day before I left, my mom decided she wanted to do a high tea.* The basic premise (as I learned — apparently everyone else in the family had already done high tea before!) is to have sandwiches, scones/other sweets, and tea in the afternoon. The experience of preparing the meal was a great encapsulation of the family: lots of bickering, poorly coordinated cooking, and absurdities (according to my mom, high tea requires you to eat, continuously, for two full hours), but surprisingly good and fun by the end of it all. Here’s a picture of what we prepared:

"High"/"Afternoon" Tea

*It turns out that what we did was “afternoon tea,” not “high tea.” But I've heard others calls the meal we had “high tea.” Perhaps it’s a North Americanism.

Bud: I met one of my flatmates upon arrival, and he seems very nice. My other flatmate, who’s also a Marshall, arrives later in the week; I already know him a bit and am excited to be living with him. Plus, I got to walk around the neighborhood park when I first arrived at the flat, and it’s absolutely gorgeous (see above). (Also, there was a guy with a strong Scottish accent playing with his dog, which was fun to eavesdrop on, if only because of the accent.) Lastly (I know I’m only supposed to do one — sue me), I started reading Alexander Bickel’s The Least Dangerous Branch. It’s a book that I’ve often read about because it’s highly influential in American constitutional scholarship, and Bickel is a wonderful writer, so I’m excited to dive in.

Thorn: Customs at Heathrow was . . . a bad time. I think the e-gates broke down for a bit, so it was a lot of waiting in line with a bunch of people in close proximity. Hopefully I didn’t pick up the coronavirus!

Potential future topics: In light of Constitution Day (September 17), should we celebrate the Constitution? What does it mean to be patriotic, and should we be patriots given America's history and origins? Is “progressive federalism” an oxymoron in light of the history of appeals to “states rights” and given the political science about who gets involved in local politics? What is “the public interest”?

That’s it for my first blog post! I hope you enjoyed it, and I’d love to hear your thoughts :)