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.
Cultural constraints on the delivery of HIV/AIDS prevention in Ireland.
HIV appeared in Ireland following an opiate epidemic in the early 1980s. Initially, however, the gay community mounted the only response to the spread of the virus while the implementation of early actions by the government was hampered by the constructions of the disease within Irish society. This paper considers the influence of the religious hierarchy in both the development of AIDS policy and in the shaping of public perceptions of the disease and those affected. A qualitative methodology is used to examine the role of such cultural constraints in an evaluation of the social context within which the prevention of HIV infection occurs. Three key issues pertinent to the policy context in Ireland are explored in depth. These are the role of the Catholic Church, the influences on health education programmes, particularly information giving, and the development of services and other interventions. These findings are discussed within the social and political contexts in which health policy is formulated.