Regulation by Amicus: The Department of Labor's Policy Making in the Courts
This Article examines the practice of "regulation by amicus": that is, an agency’s attempt to mold statutory interpretation and establish policy by filing "friend of the court" briefs in private litigation. Since the United States Supreme Court recognized agency amicus interpretations as a source of controlling law entitled to deference in Auer v. Robbins, agencies have used amicus curiae briefs — in strategic and at times aggressive ways — to advance the political agenda of the President in the courts. Using the lens of the U.S. Department of Labor’s amicus activity in wage and hour cases, this Article explores the tension between the extraordinary power and efficiency of agency amicus policy making on the one hand, with the harms this less transparent approach may inflict on fundamental democratic values such as public participation and separation of powers. The Article first puts the issue in empirical context by examining the nature and impact of the DOL’s amicus filings in 324 Fair Labor Standards Act cases from the Roosevelt through Obama administrations. To evaluate the normative implications of amicus policymaking, the piece then juxtaposes the especially active amicus strategies employed by the Bush administration — which manipulated deference principles to weaken worker protection laws — and the Obama administration — which increased amicus filings to revive enforcement of the Fair Labor Standards Act. This Article proposes an analytical framework for judicial review of agency amicus arguments that remains faithful to separation of powers — especially Congress’s purpose in passing remedial statutes like the FLSA. See Susan Bisom-Rapp's "Context Matters: A Reply to Professor Eisenberg" at http://ssrn.com/abstract=23935567.
Context Matters: A Reply to Professor Eisenberg
This invited response essay responds to Professor Deborah Eisenberg's article in the Florida Law Review, "Regulation by Amicus," which assesses U.S. Department of Labor efforts to influence statutory interpretation and effectuate public policy through the use of "friend-of-the-court" (amicus curiae) briefs in private litigation. Eisenberg focuses on the unconventional deployment of this strategy by the two most recent presidential administrations in the service of their interpretations of the Fair Labor Standards Act (FLSA), the federal statute governing wage and hour law. Through the often aggressive submission of amicus briefs, the administration of President George W. Bush aimed to use the Supreme Court’s agency deference doctrine to eviscerate worker protections, while President Barack Obama’s administration has employed the same tool to revive and expand interpretations protective of employees.This response places Professor Eisenberg's work in context in two ways. First it notes that the practice Eisenberg describes has arisen during a period of extreme political polarization and congressional gridlock. Given this context, it is not surprising that the Bush and Obama administrations would use unconventional means to enact their national political agendas. Indeed, scholars of workplace law should consider the Bush and Obama administrations as potential case studies for examining traditional and new forms of regulation.Second, this response argues that one must contextualize Eisenberg's article in light of the changing nature of work. The FLSA, which is a central focus of her article, was designed to protect those in standard employment relationships. Yet those in non-standard work – especially independent contractors and the self-employed – are increasing in number and often find themselves without the protective mantle of labor and employment law. To the extent our elected leaders refuse to legislate on their behalf, they enable, at least in part, the deregulation of segments of the labor market.
Similarities in protozoan and flatworm habituation behavior.
ONE problem in the study of habituation in protozoa is that similar results, given the same experimental manipulations, may not be obtained in metazoa. I shall compare habituation behaviour in the protozoan Spirostomum with that in the micrometazoan Rhabdocoel flatworm Stenostomum; it remains to be shown whether there is a correspondence between protozoa and metazoa both in behaviour and in their underlying chemical processes. Both these organisms contract in response to mechanical and touch stimuli: when subjected to repeated stimulation, they habituate1. Furthermore, the more intense the stimulus, the longer it takes for habituation to occur1.