Dimensiones de la gestión municipal

decisions in written opinions. Explanations are based on law, which includes precedents, binding texts, and reasoning about how those sources of law bear on the issue presented to the court. The passions that can drive either personal preferences of judges or the immediate

141. See supra note 115 and accompanying text.

142. Cf. Saul Levmore, Precommitment Politics, 82 VA.L.REV. 567, 571–72, 581 (1996).

143. See Glen Staszewski, Avoiding Absurdity, 81 IND.L.J. 1001, 1024 (2006) (observing that inaccuracy of legislative classifications is exacerbated as statutes age); Cass R. Sunstein, Problems with Rules, 83 CAL L.REV. 953, 993 (1995) (noting that new developments make rules anachronistic over time).

144. See JOEL D. ABERBACH, KEEPING A WATCHFUL EYE: THE POLITICS OF CONGRESSIONAL OVERSIGHT 2 (1990); Julian Ku & John Yoo, Beyond Formalism in Foreign Affairs: A Functional Approach to the Alien Tort Statute, 2004 SUP.CT.REV. 153, 192 (“Holding oversight hearings and threatening budget cuts present a far less difficult method to change incorrect agency interpretations than does the enactment of specific override legislation.”);

Mathew D. McCubbins & Thomas Schwartz, Congressional Oversight Overlooked: Police Patrols Versus Fire Alarms, 28 AM.J.POL.SCI. 165, 165–67 (1984).

demands of the polity are not directly relevant to the judicial process.

As the “least dangerous branch,” the judiciary depends on the persuasiveness of its justifications under the law for its legitimacy.¹⁴⁵ Therefore the influence of the branch depends on the deliberative nature of judicial decisions.

In terms of deliberative democracy, however, judicial decisionmaking is wanting in several respects. Deliberative democracy demands that the decisionmaker translate the values held by the polity at some deep level into an outcome that is at least acceptable to all (if not preferred by all) in terms of a broadly conceived public interest.¹⁴⁶ Because individual federal judges are insulated from the pressures of politics, courts are well suited to make decisions that avoid simply acquiescing to the impassioned demands of a current majority. But judges’ political insulation and the reactive nature of the judicial process equip courts poorly to ensure that their decisions comport with well-established basic values of the public.

Court decisions can deviate from these basic values for two reasons. First, the courts’ viewpoint is limited. A court’s duty is to resolve a dispute between the parties, and the parties are unlikely to represent all the various backgrounds and perspectives that may be relevant to a determination.¹⁴⁷ Although federalism cases often involve a government litigant, it is unclear that a government attorney litigating a particular case has more than a highly attenuated connection to the views and interests of the public. Moreover, judges tend to approach these issues from a legal perspective, which may predispose them to overemphasize structural constitutional concerns and to shortchange the pragmatic effects of the lines drawn in any particular case. This structural emphasis is especially likely if the judge sees making “law” as a unique aspect of the judicial role.¹⁴⁸

145. See Seidenfeld, supra note 117, at 1543 (citing ALEXANDER M.BICKEL,THE LEAST DANGEROUS BRANCH 24–27 (1962); HERBERT WECHSLER, PRINCIPLES, POLITICS, AND FUNDAMENTAL LAW 27–28 (1961)).

146. Id. at 1539 (expressing hope that civic republicanism will yield consensus).

147. Id. at 1544 (“Parties to litigation ordinarily do not adequately represent many potentially affected interest groups.”).

148. Cf. Elizabeth V. Foote, Statutory Interpretation or Public Administration: How Chevron Misconceives the Function of Agencies and Why It Matters, 59 ADMIN.L.REV. 673, 691 (2007) (“Unlike the judiciary, agencies implement their enabling acts with a combination of expertise, practicality, interest-group input, and political will—not with a strictly legal, neutral, judicial-style methodology that would be principally attentive to the text and structure of the [controlling legal document].”).

To the extent that a federalism issue arises solely out of the meaning of a statute or the Constitution, courts frequently get input from amicus briefs, which provide an avenue for nonparties with differing perspectives to be heard. But even amicus briefs are limited by the fact that an entity must first learn of the issue on which it wishes to inform the courts of its view, and then must hire a lawyer to write a brief on the issue. For matters that are sufficiently important that they are heard by the Supreme Court, interested groups might have enough interest to incur the costs of filing amicus briefs. In lower courts, however, interest groups face both higher costs of learning about relevant cases and lesser benefits of prevailing in those cases. Therefore, the costs of participation relative to the potential payoff from influencing the outcome of the case create a significant barrier to participation.

In addition, the issues related to federalism involve more than simply reading texts and legal precedents. Decisions about federalism are often a choice of institutions—for example, a choice between uniform federal regulation and more diverse but more complex and costly state-by-state implementation.¹⁴⁹ Choosing the best institution to carry out policy or preserve rights is a complex policy judgment.

That judgment is informed not only by legal analyses but also by technical knowledge relating to a regulatory program and political knowledge about how various members of society will be affected by the ultimate determination of whether and how states can regulate.¹⁵⁰ Further, amici do not participate in creating the record on which the court must base its decision;¹⁵¹ therefore, participation as an amicus is insufficient to provide the courts with all the relevant information that various interest groups have to offer.

Second, courts are reactive, which can lead them to shortchange the programmatic considerations related to federalism.¹⁵² To illustrate, consider a situation in which it is unclear whether a statute authorizes

149. See Merrill, supra note 6, at 733 (illustrating a similar choice of institution in another federalism context).

150. See Hills, supra note 28, at 6; McGinnis, supra note 55, at 949.

151. See Barbara M. Yarnold, Do Courts Respond to the Political Clout of Groups or to Their Superior Litigation Resources/”Repeat Player” Status?, 18 JUST.SYS.J. 29, 31–32 (1995) (reporting that interest groups prefer to bring cases rather than file amicus briefs because that allows them to choose test cases and create the record for appeal).

152. See Neal Devins & Alan Meese, Judicial Review and Nongeneralizable Cases, 32 FLA. ST.U.L.REV. 323, 328 (2005) (“[B]ecause courts almost always play a reactive role, they lack meaningful control of either the facts or legal issues before them.”).

an agency to displace state law that would affect the agency’s program. Suppose in addition that the courts had adopted the position, suggested by some commentators,¹⁵³ that an agency may not displace state law unless the statute authorizing such action clearly indicates that the agency has the authority to preempt. In such a situation, the agency could not assert its authority to displace state law because the statute is not sufficiently clear on the question until the courts resolve its meaning. Therefore, the issue of whether regulations under the statute displace state law would arise, if at all, only through a case in which an entity adversely affected by state law argues that the law is preempted by federal regulation.

One might argue that this is the preferred mechanism for raising a regulatory preemption case because such cases usually arise in state court. This avenue for raising the preemption issue therefore allows state courts to clarify the bounds of state law, allowing the Supreme Court to assess better whether preemption is warranted.¹⁵⁴

By the time a case is brought in state court, however, the federalism decision will come too late for most entities. From a federal agency’s perspective, the ideal shape of federal regulation may depend on related state laws. For example, an agency that deems uniformity of paramount importance—and would therefore prefer to displace state law—would adopt different regulations if it could not provide for such displacement than if it could be certain of preemption. Similarly, deferring resolution of the preemption decision to a court challenge may come too late for many regulated entities; out of the fear of penalty under state law, these entities will comply with that law even if they have a good faith belief that state law has been preempted. If every entity subject to regulation acquiesces, the federalism issue may never get to court at all.¹⁵⁵

153. E.g., Mendelson, supra note 4, at 707; Merrill, supra note 6, at 767.

154. Merrill, supra note 6, at 767.

155. Cf. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503–04 (1985) (explaining that the Court sometimes permits individuals “whose own speech or expressive conduct may be validly prohibited or sanctioned” to facially challenge statutes that impose overbroad restraints on free speech because “those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution”); Mark Seidenfeld, Playing Games with the Timing of Judicial Review: An Evaluation of Proposals to Restrict Pre-Enforcement Review of Agency Rules, 58 OHIO ST.L.J. 85, 126–27 (1997) (arguing that if the penalty is sufficiently great, all entities will comply with the rule even if its validity is suspect).

3. Agency Deliberation. Agencies have the potential to be both