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.
What We Learn in Troubled Times: Deregulation and Safe Work in the New Economy
Reviews of how federal agencies functioned during George W. Bush’s presidency reveal many instances of regulatory capture by industry. One prototypical example is the Occupational Safety and Health Administration (OSHA), the agency responsible for occupational safety and health (OSH) standard setting and enforcement. In contrast, a broad array of stakeholders during the Bush years gave good marks to an entirely separate agency, the National Institute for Occupational Safety and Health (NIOSH), which conducts research and develops recommendations to prevent workplace injury and illness.By reviewing the disparate performance of OSHA and NIOSH during the Bush administration, this article sheds light on the OSH challenges facing employees in the new economy, highlights better ways of protecting workplace safety and health, and identifies sustainable practices worth preserving and strengthening. To those ends, the academic debates surrounding new governance scholarship and responsive regulatory techniques provide a backdrop. Situating the safety agencies' recent records within those debates reveals the pitfalls of traditional and new approaches to regulation and the synergies between them. To improve the safety and health of America’s increasingly vulnerable workers, both approaches are required but must be linked. Yet the necessary links between them may be more diffuse than many scholars assume. In other words, it is not necessary or advisable for all cooperative, reflexive, and participatory programs to be housed in traditional regulatory agencies. During periods when, as in the last administration, deregulation is ascendant, agencies that lack enforcement powers may be better positioned to obtain substantive results than are their regulatory counterparts.
Electrophysiological evidence that a subset of midbrain dopamine neurons integrate the reward signal induced by electrical stimulation of the posterior mesencephalon
This study was aimed at determining whether midbrain dopamine (DA) neurons are trans-synaptically activated by rewarding electrical stimulation applied near the midline in the posterior mesencephalon (PM), and in the affirmative, whether the increase in firing was proportional to the rewarding effectiveness of the stimulation. Experiments were performed on male Long-Evans rats trained to lever press to obtain 400 ms trains of cathodal rectangular pulses. Following the training period, curves relating the rates of responding to the stimulation frequencies were determined at two current intensities and reward thresholds were calculated for each animal. Each animal was then anesthetized with urethane (1.2 g/kg, i.p.) and firing rate of DA neurons were recorded before, during, and after each of 50 trains (1 train/3 s) of stimulation to the PM using stimulation parameters that either sustained near threshold responding (rewarding), or failed to sustain responding (non-rewarding), in the behavioral tests. A total of 24 DA cells were recorded from 13 behaviorally trained animals, and of these, 17 (71%) responded to rewarding stimulation by an increase in firing, five (21%) were unresponsive and two (8%) were inhibited. In 12 of the 17 cells that were activated, the increase in firing was proportional to the rewarding effectiveness of the stimulation rather than the total strength of the stimulation. These results provide evidence that a subset of midbrain DA neurons are trans-synaptically activated by rewarding PM stimulation and constitute a second, or subsequent, stage of the reward-relevant pathway that integrates the PM reward signal.