Document Type

Article

Publication Title

Chapman Law Review

Abstract

It is important here not to get ahead of oneself, for what is often missing in these elaborate historical debates is a sure sense of why anyone—legislators, judges, lawyers, laypersons, and even scholars—should care about the doctrine in the first place. This Article aims to fill the gap with a functional analysis of the nondelegation doctrine that helps explain where it should have teeth and where it should not. Accordingly, Part I offers a brief account of the evolution of the nondelegation doctrine from a historical—mostly originalist in nature—and doctrinal perspective. Part II develops a simple analytical model to explain why and how the doctrine should be used, by resorting back to a traditional account of agency costs, which builds upon the classic 1976 article on the subject by Meckling and Jensen, there restricted to the context of public corporations. Part III explains how this model works in the context of private business contexts, in order to set up a baseline against which the public law nondelegation doctrine, which operates in a different institutional setting, can be evaluated. In so doing, this Article looks both at bailment arrangements with chattels and trustee decisions over corporate assets to show the persistent net benefit from delegating to agents creates a rebuttable presumption in favor of delegation. But like any rebuttable presumption, it is necessary to state the conditions in which the presumption can be overcome. In this case, the presumption should be abandoned whenever there is evidence of a serious conflict of interest between the welfare of the principal, the public at large, and its agents, Congress, the President, and various administrative agencies. In Part IV, the Article circles back from the private sector to the public sector in order to apply this model to help explain a broad range of delegation cases, starting with the First Congress’s treatment of pensions, patents, and post roads, and then extending forward through the nineteenth century into the post-New Deal developments ending up with Gundy.

First Page

659

Volume

24

Publication Date

2021

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