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7.pptx
Informal Policymaking:
Much of the work of agencies occurs before or instead of the formal processes of rule-making and adjudication.
Kenneth Culp Davis: “informal activity is the lifeblood of the administrative process”
90% of actions are informal, and 99% of informal action is discretionary
Politicians, citizens and groups pressure agencies to resolve problems or make decisions in a flexible, cost efficient, and more collaborative manner.
- More discretion when there are less resources
SECTION V –INFORMAL PROCESSES & DISCRETION
Rise of modern informal processes
Clinton/Gore’s “reinventing government” reflected movement for collaborative administrative processes at both federal and state levels.
- Alternative dispute resolution(ADR) in adjudicative situations (and judicial)
- Negotiated rulemaking
- Placed in contracts
But it’s important to consider normal inquiries and interactions as well
Discretion and the administrative state
Informal processes are further advancement of agency discretion: opportunities for the agency to make choices that have effect on policy and private entities and individuals.
Conservatives are concerned this has gone too far, and there is judicial movement to restrain or reverse this expansion of agency power.
Seven Factors affecting the conditions or outcomes of informal administrative processes (From Cooper)
1. Player types: repeat verse single-shot players
2. Sunk costs: hard to pull out of existing political or economic commitments
3. Anticipated costs: estimates of costs and consequences influence choice of actions
SECTION V –INFORMAL PROCESSES & DISCRETION
Seven Factors affecting the conditions or outcomes of informal administrative processes (From Cooper)
4. Power of the raised eyebrow: interpretation of non-written communication influences behavior
Individualized justice: official may use discretion to help someone
6. Due process verse efficiency models in PA – problem of balancing fairness with press of business
Seven Factors affecting the conditions or outcomes of informal administrative processes (From Cooper)
7. Power law: Mark Green
- Using legal power to serve objectives, not to serve justice
- threatening or initiating intimidating lawsuits
- having attorney present in informal context
- fostering statutory or code changes who impacts are unclear at creation
- Endless appeals for more legal or public hearings
Common types of informal mechanisms
THESE MAY CONVERGE WITH ADJUDICATION
- random inquiries
- preformal processes: pushed in contracts as ADR
- filtering actions: prehearing conferences
- informal negotiated settlements
- preclearance procedures : advisory opinions
- opting out techniques: consent decree
SECTION V –INFORMAL PROCESSES & DISCRETION
SECTION V –INFORMAL PROCESSES & DISCRETION
INFORMAL MECHANISMS: Diversions
1. Negotiation: two parties negotiate directly
2. Mediation: two parties work with facilitator
3. Arbitration: neutral decision-maker
Advantages of Informal Processes
1. speed
2. low cost
3. less adversarial
4. beyond zero sum
5. less disruption
6. enhance discretion and flexibility
SECTION V –INFORMAL PROCESSES & DISCRETION
SECTION V –INFORMAL PROCESSES & DISCRETION
Disadvantages
1. potential for discrimination
2. objectivity issue: sunk costs
3. organizational politics
4. may deter formal processes
5. weaker recordkeeping
6. no guide to future players
7. may not diffuse conflict
SECTION V –INFORMAL PROCESSES & DISCRETION
Cases in Informal Actions:
Estoppel: legal term meaning that one is prevented from taking a legal action because of a prior action or activity
Federal Crop Insurance Corporation v. Merrill (1947)
- “square corners”
Goldberg v. Weinberger (1976)
And now some words from our sponsors:
“However many people complain about the "red tape," it would be sheer illusion to think ... continuous administrative work can be carried out in any field except by means of officials working in offices.... The choice is only that between bureaucracy and dillettantism.” MAX WEBER, Economy and Society
“Bureaucracy is not an obstacle to democracy, but an inevitable complement to it.” JOSEPH A. SCHUMPETER, Capitalism
“Roy was just another bureaucrat to me, but I realized very soon that without Roy this thing would have died.” Ben Shahn
“Bureaucracy defends the status quo long past the time when the quo has lost its status” Laurence J. Peter
“The bureaucracy is expanding to meet the needs of the expanding bureaucracy.” Oscar Wilde
But consider this quote about religion: “ With or without religion, you would have good people doing good things and evil people doing evil things. But for good people to do evil things, that takes religion.”. Steven Weinberg
