Last week, Peggy Little and the Competitive Enterprise Institute published Pirates at the Parchment Gates, in which she explained how the practice of state attorneys general entering into contingency fee contracts runs roughshod over at least three constitutional principles. Those contracts got their start in the tobacco litigation of the 1990s. After that experience left a bad taste in the mouths of many, the practice moved toward the shadows although it never disappeared. Average wholesale price litigation and other such schemes kept the practice alive until it reappeared in the recent climate change inquisition.
Little notes that, when state attorneys general enter into contingent fee contracts with private counsel, they: (1) end run the appropriation process in a constitutionally impermissible way that cannot be sanctioned by state statutes; (2) it creates pots of money that have not been legislatively authorized and are not subject to legislative control and accountability; and (3) the allow private firms to play a role in governmental investigations and prosecutions in violation of due process. Moreover, the contracts represent bad policy.
Rachel Augustine Potter writes for the Brookings Institution:
Regulatory politics, not usually the stuff of headlines, is suddenly above-the-fold news. In his first week, President Trump laid out an ambitious anti-regulatory goal of eliminating “75%–maybe more” of existing regulation. Last week he followed up on that pledge, signing an executive order adopting a “2 for 1” policy for new regulations and issuing another order to consider rolling back Dodd-Frank regulations.
However, despite this flurry of activity, it’s too soon to conclude that the regulatory state as we know it is in retreat.
Whether legitimacy, democracy, accountability, non-partisanship, or separation of powers motivates the sentiment, there are a number of ways, albeit controversial, to reform the federal regulatory state:
(1) Codify the principle in McGrain v. Daugherty (1927) as it applies to regulatory decision-making, forcing agencies to publish jurisdictional statements in the federal register prior to beginning investigations or enforcement actions. This would have avoided many of the due process issues at the center of theLabMDcase. [Read More]
Max Raskin, Research Fellow at the Institute for Judicial Administration at NYU Law, explains the theory and logic behind Bitcoin, what Bitcoins can be used for, and how Bitcoin has transformed our understanding of currency.