The Internationalization of Agency Actions
U.S. agencies routinely base their domestic regulations on international considerations, such as the benefits of coordinating U.S. and foreign standards or the foreign policy advantages of a particular policy. I refer to this phenomenon as the internationalization of agency actions. This Article examines what the internationalization of agency actions means for agency decision-making processes, institutional design, and legal doctrine. It creates a stylized model of how agencies determine whether to coordinate their standards with foreign regulations. Among other institutional design findings, it shows that court opinions that reduce the stringency of judicial review when agencies implement internationally coordinated standards make such coordination more likely to occur, but they simultaneously deprive the executive of bargaining power because U.S. agencies cannot credibly threaten that any coordinated agreement must align more closely with U.S. values or else risk being overturned in U.S. courts. This Article also develops a taxonomy of international factors relied on by agencies and applies that taxonomy to help clarify the doctrinal issue of whether and when agencies can use international factors to justify their actions in court. This taxonomical approach shows how the Supreme Court’s opinion in Massachusetts v. EPA can reasonably be read to allow agencies to invoke a far broader range of foreign policy rationales than some prevailing views suggest.
The Irrelevance of Politics for Arbitrary and Capricious Review
This article presents a nuanced understanding of reasoned decisionmaking review to evaluate the propriety of judicial consideration of political influence on agencies when reviewing agency rulemaking. It contends that, properly understood, judicial review of agency action under the reasoned decisionmaking standard precludes a court from considering such influence, but nonetheless allows an agency to consider such influence in rulemaking. It does so by identifying two fundamental attributes of such review, as courts have traditionally applied it, that have eluded scholarly focus and perhaps recognition altogether. The first attribute is that agency reasons, which are what courts review, are justifications rather than motivations for agency action. From this attribute it follows that the irrelevance of politics for judicial review does not preclude politics as a legitimate agency consideration in rulemaking. The second attribute is that reasoned decisionmaking requires an agency to make manifest the trade-offs generated by its rulemaking. This attribute facilitates political accountability by reducing barriers to public awareness of these trade-offs. The article argues that permitting an agency to credit politics as a justification for a rule would interfere with this facilitation by relieving the agency of its obligation to reveal the full implications of its rulemaking. The implications of this article are thus profound both for the reasoned decisionmaking standard of review in general and for how politics fits within it.
Hill country sheep production. I. The influence of age, flock, and year on some components of reproduction rate in Romney and Border Leicester × Romney ewes.
Data from 7,091 straightbred Romney and Border Leicester × Romney ewes grazed at the Whatawhata Hill Country Research Station over the period 1959 to 1967 have been used to obtain estimates of flock and age-of-ewe effects on reproduction rate and its components and of year-to-year variation. The ewes were from six groups: a Romney control (RCR) flock, a Romney flock in which ewes were mated either to Romney (RER) or to Border Leicester rams (REB), and flocks of first-cross (F1), second-cross (F2), and third-cross (F3) Border Leicester × Romney ewes mated to first-cross Border Leicester × Romney rams. The ewes' ages at lambing varied from 2 to 5 years and no selection was practised. The ratio of number of lambs weaned per ewe present at lambing increased from the RCR (0.84) to the F1 (1.07), then declined with interbreeding to the F2 (0.92) and further to the F3 (0.87) ewes. Similar changes were evident for the percentage of ewes lambing, of multiple births, and of lambs surviving to weaning. Over...