Faculty Scholarship Digest

Peter M. Shane

 

Articles

Peter M. Shane, Empowering the Collaborative Citizen in the Administrative State: A Case Study of the Federal Communication Commission, 65 UNIV. MIAMI L. REV. 483 (2011).

In 2009, Peter served as an unpaid Visiting Scholar with the Federal Communications Commission in the early days of the Obama administration and FCC Chairman Julius Genachowski and was able to observe first-hand the drive at agency reform “to provide openness and transparency,” which meant using new media to pursue these goals by better communicating the FCC’s story, by better conveying and sharing the trove of data the FCC has about “the nation’s information and communication infrastructure,” and by “infus[ing] the agency with new voices, perspectives, and information coming from the public at large.” Peter’s deep expertise in using cyberspace to advance democratic objectives made him an ideal participant/observer for using the FCC’s efforts as a case study, which resulted in this article.

The article details some remarkable achievements and progress on all three fronts by the FCC but also details the daunting impediments to success that had a significant impact even in the context of a President and agency head likely as committed as any to these goals. The article describes these challenges of cost, complexity, and law, each of which provided consistent impediments, with specific examples that give depth to Peter’s conclusion that while ‘[o[penness and transparency sound like easy things to achieve, collaboration perhaps only slightly more complex,” in fact “government always entails management and managing open, participatory government is in some ways more complex and more costly than doing business less democratically,” even in the internet age. Thus, accomplishing these goals will require consistent and persistent dedication and investment. The article’s final section includes some thoughts on the conditions that might produce such long-term efforts.


Peter M. Shane, The Obama Administration and the Prospects for a Democratic Presidency in a Post-9/11 World, 56 N.Y.L. School L. Rev. 27 (2011).

This article, part of an issue examining civil liberties ten years after the September 11 terrorist attacks, examines the Obama administration’s attitude toward executive power in comparison to the Bush administration. Peter has written books and many articles on presidential power and has severely criticized the “expansive category of executive authority largely immune to legislative control or judicial review” espoused by the Bush administration. In this article, Peter contends that while the Obama administration has in practice stepped back from the forceful “presidentialism” of the Bush administration in important ways, it has not articulated an opposing vision, instead making a series of “pragmatic” choices while leaving its vision of the power of the presidency obscure.

The article traces the Obama administration’s adjustments to Bush administration policy in two critical areas of presidential power: the treatment of “enemy combatants” and government secrecy. In each of these areas, the Obama administration has reversed keystone positions of the Bush administration that had relied on extremely expansive assertions of presidential power. Yet in rejecting those positions, the Obama administration has avoided describing them as beyond the scope of presidential power, nor has it explained its rationale when it has arguably pushed the boundaries of power itself, for example in its assaults on Libya to create a no-fly zone. The article identifies three reasons for this perceived shortcoming: (i) reluctance to suggest restraints on one’s own power; (ii) the potential political cost of a genuine effort to “reinvigorate the rule of law in the national security context;” and (iii) insularity — it may seem to the folks within the administration that they have been vigorous advocates for the rule of law in comparison to the Bush administration. Yet, Peter argues, it is critically important that the Obama administration articulate its vision of separation-of-powers and rule of law and expressly test its doctrines against its standards in order for a counter-narrative to the imperial presidency to endure.


Peter Shane, Legislative Delegation, the Unitary Executive, and the Legitimacy of the Administrative State, 33 HARV. J. OF L. & PUB. POL. 103 (2010).

In this article, part of a symposium on separation of powers, Peter draws on arguments developed in his recent book Madison’s Nightmare to contend that current doctrine on the two most hotly contested contemporary issues in the field is optimal. Those two issues are: (i) the scope of Congress’ ability to delegate policy-making authority to the Executive Branch (broad or narrow), and (ii) the ability of Congress to structure how that authority is allocated within the Executive Branch (i.e., whether Congress can restrict presidential prerogatives with regard to delegated power).

Current doctrine allows broad delegation and ample Congressional authority to set the terms of its delegation. Some federalist scholars argue that both answers should come out the other way, narrow delegation and limited ability to dictate exercise of delegated authority, and Peter acknowledges that narrow delegation would temper some of the problems with the “unitary executive.” The article contends, however, that the delegation issue has been settled, and settled wisely, on the broad side for many decades, and that there is no reasonable possibility of reversal on this point.

The article argues, though, that a change which is conceivable—movement to limited Congressional ability to restrict presidential prerogatives with regard to delegated authority—would bring disaster: an unaccountable executive branch that would be prone to “shallow, defensive, ideologically driven, and sometimes lawless decision making.” Peter contends that current doctrine plausibly leads to democratic and competent (albeit imperfect) governance, and therefore well comports with the Framers’ original vision.


Peter M. Shane, Executive Branch Self-Policing in Times of Crisis: The Challenges for Conscientious Legal Analysis, 12 Journal of Nat’l Sec. L. 507 (2012).

In this invited contribution, Peter examines the repeated inability of the executive branch “to provide reliable legal and constitutional analysis in times of emergency, including covert military operations.” Drawing on his work in MADISON’S NIGHTMARE, Peter argues that an increasing “willingness to abandon the system of checks and balances to facilitate prompt action” by the executive branch (which he calls “presidentialism” in contrast to “pluralism”) is a dangerous and destructive tendency, that presents special risks in the context of military and foreign affairs. This article looks at the role of government lawyers in recent episodes of presidentialism, and argues that the breakdown of government lawyering has left executive branch attorneys as handmaidens to constitutional and policy disasters.

The article describes numerous examples of executive branch lawyers, often operating in a bubble of secrecy based on national security, reaching poor legal judgments under political and professional pressure in a powerfully ideological environment. Peter, who spent several years early in his career in the Office of Legal Counsel, argues (as he sets out in much greater detail in his book) that the checks and balances critical to pluralism depend on more than the legal rules, they also require “an assemblage of norms, cooperative agreements, and informal coordination activities, both within and between the branches.” The article seeks to inspire a return to that culture by vivid description—from Vietnam to the torture memo––of “how the presidentialists’ attitude plays out in practice.”


Peter M. Shane, Foreword: The NSA and the Legal Regime for Foreign Intelligence Surveillance, 10 I/S: J.L. & Pol'y for Info. Soc'y 259 (2014).

This essay introduces the eleven articles in the outstanding I/S Journal symposium titled NSA Surveillance: Issues of Security, Privacy and Civil Liberty. In the tradition of such a Forward, Peter gives an overview of the subject and discusses the contributions of each of the pieces. The articles cover four key questions related to the National Security Agency: (i) the legality (from both statutory and constitutional perspectives) of the NSA’s surveillance and information gathering activities; (ii) the contribution of those activities to national security, and (iii) their impact on civil liberties; and, finally, (iv) possible avenues for constructive change. The essay’s careful overview of the history of government interception and collection of communications (including the legislative milestones of Title III, the Foreign Intelligence Surveillance Act (“FISA”), and the Patriot Act) over the past century sets the framework for these discussions and is itself an education to all but the most initiated.

In a final section, Peter makes a separate observation from these materials. Much of the government’s surveillance activities have been approved by the Foreign Intelligence Surveillance Court (“FISC”), a body of federal judges that hears the government’s applications ex parte and keeps much of its work under seal. It has become apparent that the FISC has tended to approve aggressive interpretations of FISA by the executive branch that likely expand the government’s surveillance power beyond what most observers believed Congress was authorizing in enacting the statutes. At the same time, it appears that the FISC has been fairly strict in monitoring minimization and other implementation rules regarding the surveillance it approves. The essay suggests that this approach may be a compromise on the part of the FISC, trading the more obvious interpretations of FISA for tacit executive acquiescence in the power of the FISC to constrain executive action and for some genuine impact on the privacy harms from executive action. The FISC thus has served important functions, the essay contends; charges that it is a mere rubberstamp miss the broader inter-branch power context in which it operates and may exaggerate its realistic ability to constrain executive action. Notwithstanding that partial validation, the essay has clear criticisms for the FISC’s approach: both the lack of public knowledge (and hence debate) of what is actually occurring and the possibility of approval of activities that could not be plausibly defended through conscientious statutory interpretations are serious drawbacks.


Peter M. Shane, Cybersecurity Policy as if “Ordinary Citizens” Mattered: The Case for Public Participation in Cyber Policy Making, 8 I/S: J. OF L. & POL. FOR THE INFORMATION SOC. 439 (2012).

This article is the final piece in an issue of the I/S journal devoted to cybersecurity. The article forcefully contends that, contrary to a popular conception that cybersecurity is a matter soley for computer and engineering experts, the general public should have a “meaningful voice in cyber policymaking,” including cybersecurity. To be sure, “cybersecurity involves technical choices requiring specialized competence,” but so do “environmental policy, biomedical research policy, or, for that matter, counterinsurgency strategy in Afghanistan,” all of which, Peter contends, “implicat[e] a series of choices among competing values and priorities that are the ordinary stuff of politics.”

The issues Peter covers are many. To begin with there is the distinction between “cyber attack” (e.g., shutting down a transportation system by disrupting its computers) and “cyber espionage” (e.g., taking information from your hard drive), so the issues involved go far beyond the familiar privacy vs. security trade-off. There are issues of cost, the risks/reward of adopting an offensive cyberattack capability (imagine a question about whether the country should develop a nuclear weapon) and, because so much digital infrastructure is in private hands, questions of public/private boundaries and partnerships. The bulk of the article considers methods of achieving public engagement in this context and the values to be achieved by doing so.


Books

Peter Shane, Separation of Powers Law, cases and materials (Carolina Academic Press 3rd Ed. 2011).

The latest edition of this leading casebook in its field includes the many changes and developments in this ever more central subject. As the authors put it, with understatement in my view, as “the ever-increasing number of legal cases involving separation of powers attests, the subject of this work has become and is likely to remain a central national concern.” The pace of change and development in the field is truly astounding, as year after year, separations-of-powers issues and cases suffuse our most pressing national concerns. As Peter and his co-author wonderfully put it: “Far-fetched does not begin to capture how we would have described [when they started the precursor to this book] the ideas that Congress might impeach a President for lying about a sexual affair, that the Supreme Court would intercede in a state vote recount in a way that would effectively decide a presidential election, or that the executive branch would claim inherent authority to hold U.S. citizens indefinitely, and without counsel or hearing, as ‘enemy combatants.’” The new edition brings the entire discussion up to date.


Peter M. Shane (with Jerry L. Mashaw and Richard A. Merrill), ADMINISTRATIVE LAW: THE AMERICAN PUBLIC LAW SYSTEM (West 6th Ed. 2009).

The latest edition of this leading casebook in Administrative Law runs 1,370 pages, not counting the seven appendices. Of course, as the authors note, administrative law “is a vital field subject to rapid change.” As this edition comes to press, “demands for re-regulation of financial intermediation are ascendant, and presidential control of agency decision-making has been subjected to increasingly harsh criticism.” Yet anyone over 40 can remember several swings of the many pendulums in administrative law, and Shane and his co-authors have risen to the task of keeping this foundational text (soon to celebrate its 35th birthday) current and useful to instruction of the next generation, thoughtfully integrating the new material in this dynamic field, rather than simply adding stratified layer upon layer.


Cybersecurity (Peter M. Shane and & Jeffrey Hunker eds., 2013).

This book is the product of the March 2011 conference at Ohio State hosted by I/S: A Journal of Law and Policy for the Information Society. The goal of the conference and the papers collected in this volume is to increase public dialogue and foster more informed public debate on the contours of cybersecurity policy. Cybersecurity is the body of technologies, policies and practices designed to protect networks, computer, and data from attack, damage or unauthorized usage. Peter Shane not only edits the book, but also contributes a chapter as well. In the book’s final chapter, Cybersecurity Policy as if “Ordinary Citizens” Mattered: The Case for Public Participation in Cyber Policy Making, Shane strikes at the heart of the current abdication of cybersecurity to experts. Finding this totally unsatisfactory, he describes both the need for public engagement in cyber policy and a means to obtain it. Particularly interesting is the description of deliberative polling—a method of random sampling to select participants from among the various stakeholders who ultimately engage in face-to-face deliberation to produce a form of democratic recommendation. The ultimate benefit is the input of both experts and lay persons in an area of public policy where currently these groups simply talk past each other (if they are talking at all).


Peter M. Shane, MADISON’S NIGHTMARE, HOW EXECUTIVE POWER THREATENS AMERICAN DEMOCRACY (Univ. of Chicago 2009).

In this book, Shane contends that over the last thirty years the American constitutional structure of checks and balances has been devastated by a variety of forces producing increasing and increasingly effective claims of unilateral presidential power, what the book calls “presidentialism”—“a theory of government and a pattern of government practice that treat our Constitution as vesting in the President a fixed and expansive category of executive authority largely immune to legislative control or judicial review.” The book attends to the contrast between presidentialism and the vision of the framers, deconstructs the recent political events that have furthered presidentialism, disputes on their own turf both the empirical claim that presidentialism is good government practice (particularly in the modern era) and the legal claim that the Constitution, properly understood, supports presidentialism, and, finally, sets out proposed prescriptive steps to find the way back to constitutional pluralism. A theme throughout the book are examples and evidence for Shane’s view that a successful separation-of-powers system is as much a matter of norms as a matter of legal rules: “[W]here powers are allocated to each branch precisely with the purpose of rendering each branch vulnerable to the discretion of the others, some degree of institutional self-restraint is imperative.”

The book discusses presidentialism in the context of both inherent and delegated powers. The former debate considers the President’s ability to use presidential authority over military and foreign affairs to act unilaterally, or, indeed, in opposition to specific direction from Congress in such spheres. The latter debate concerns the President’s authority over powers that come from Congressional delegation — which includes most domestic policy. In this context, the question is whether the president is “the overseer” or “the decider” for the federal bureaucracy. As developed by Shane, each of these issues emerges as multi-faceted, distinct, and important. As an empirical matter, the book argues that “presidentialism” has reduced the quality of presidential decision-making — as a result of the insularity and defensiveness it fosters — and undermines the independent values of the rule of law and respect for alternative ideological perspectives. Shane supports these arguments with brief but trenchant reviews of particular executive actions.

The book’s final chapter offers prescriptions for a return to Madison’s pluralist vision. This includes, first, many suggestions for changes within government, such as a more consultive process for presidential appointments, more consultive legislative agenda-building from the executive, and a statement by the Supreme Court that “presidential signing statements have no jurisprudential weight.” Second, the chapter prescribes multiple democracy-promoting initiatives (e.g., election reforms). Such efforts are essential, Shane argues, because of “democracy’s foundational aim — legitimating government decision making through processes that respect the value of both political freedom and political equality.”


Peter M. Shane ed. (w/Stephan Coleman), 48 Connecting Democracy: Online Consultation and the Flow of Political Communication (MIT Press 2012).

This extraordinary volume is the result of a three-year international, interdisciplinary collaboration between nineteen researchers under funding ultimately deriving from the National Science Foundation. It started with the founding of the International Working Group on Online Consultation and Public Policy Making, under Peter’s leadership, to respond to a call for international, multidisciplinary projects on digital government. The group included researchers based in the United States, the United Kingdom, France, Israel, Italy, Slovenia and Sweden with expertise in law, communication, political science, public policy and information science, each of whom are authors of some part of the book. To prepare the book, the group met over several years at the Kennedy School of Government at Harvard University, at the University of Leeds, at The Ohio State University, at the Aspen Institute in Washington, D.C., and at SciPo in Paris, France.

The book’s object is to assess the democratic effects of the online-consultation phenomenon, for example, government sponsored or authorized online fora for public input on policy making. The book’s seventeen chapters cover online consultation’s relation to the flow of political information, the meaning of online communication to its participants, and the legal frameworks for such consultations. The book’s extraordinary breadth of perspective resulting from its international and interdisciplinary character is truly groundbreaking in this field. The authors strike a balance between recognizing the force and potential of the online consultation phenomenon and the many forms it can take on the one hand, and avoiding the “naive optimism” that can flow from seeing the technological opportunities without remembering that “politics is about power, and power does not give way easily,” destabilizing technologies notwithstanding.


Peter M. Shane (w/ Jerry L. Mashaw et al.), Administrative Law: The American Public Law System Cases and Materials (7th ed. 2014).

Peter’s leading casebook in the Administrative Law field has added three new co-authors from Stanford and Yale and nearly two hundred pages, bringing the total text to more than 1,600 pages. This is the seventh edition of this important authority in this ever-changing field; no doubt the first edition would now be only faintly recognizable. This edition separates the subjects of the scope of judicial review and its availability into two separate chapters and gives an entirely separate chapter to the alternative remedies of suits for money damages and private suits to enforce public law. Of the nine chapters, Peter is the author of two (“Executive Supervision of Administrative Action” and “Government Information Acquisition and the Pursuit of Open Government”) both of which draw on his other fields of research, and co-author of two others.

Among the new material the book includes is a section Peter created regarding the evolving ideal of open government. The modern open government movement traces back to the 1966 campaign for the Freedom of Information Act, and the value of openness for the administrative state is “enthusiastically endorsed across the political spectrum.” The new section explores this value in two contemporary forms: (i) the so-called “open data” movement which makes government data sets available with advantages not only of accountability, but also potentially of engagement and efficiency, but potential disadvantages of cost and actually diminishing openness; (ii) the government’s use of interactive media, in particular with regard to the manner in which “pre-digital laws may hamper” such use, and some of the administrative and philosophical challenges facing agencies seeking to use interactive media to engage the public with the agency’s work.


Book Chapters

Peter M. Shane, Online Consultation and Political Communication in the Era of Obama: An Introduction, in Stephen Coleman & Peter M. Shane eds., Connecting Democracy: Online Consultation and the Flow of Political Communication (MIT Press 2011).

This introductory chapter to Peter’s international, interdisciplinary book covers a lot of ground, surveying the potential highs and lows for e-democracy in general, and for electronic public consultation (the subject of the book) in particular, providing an overview of the chapters to follow, and specifically describing and assessing some of the online consultive practices of the Obama administration during its early years. The chapter begins by describing an imaginary online utopia, where the internet is put to optimal use for democratic purposes by a public equipped to do so, both technologically and otherwise. The chapter uses this background to frame both the potential for online consultation and the barriers.

The first of these barriers is the consistent absence to date of tying such consultation in “any ascertainable, accountable way to government policy making.” A second barrier is a general lack of public participation in such consultation—and, after all, Peter notes, if it doesn’t matter (barrier #1), why should someone participate? A third and important issue is that without the equality of the online utopia, online consultation could become a vehicle for furthering subordination. A fourth issue has been that the flood of online information, rather than eliminating the need for intermediaries, has just created a new class of such intermediaries (think Google) that present their own potential problems of privacy and distortion. At the same time, the picture is not all dark and the chapter turns to the great consultative potential, which most readers of this digest will easily be able to imagine. Peter then considers some of the early efforts of the Obama administration in this area, finding both the potential dangers and advantages—on a small scale—brought to life even in these initial efforts.


Peter M. Shane (w/Polona Picman Stefancic), The Legal Environment for Online Democracy, in Stephen Coleman & Peter M. Shane eds., Connecting Democracy: Online Consultation and the Flow of Political Communication (MIT Press 2011).

This chapter is a part of a book that closely examines, from an international and interdisciplinary perspective, the current state, challenges, and possibilities for a specific type of online democracy initiative: online consultation. In this chapter, Peter and his coauthor (the director of the Rea IT Research Centre in Slovenia) examine a part of the legal infrastructure affecting such consultation. Relevant laws can be both administrative (e.g., notice, record-keeping or bureaucratic approval requirements) and fundamental (e.g., free expression requirements). While either type of legal regulation can have a very significant impact on a government’s willingness and success with regard to online consultation, this chapter focuses on the latter category.

Both the United States and the European Union provide substantial communication rights, and the chapter notes both the significance of the issues involved and the uncertainty that will persist pending their resolution. On the one hand, for example, “[p]olicing too stringently” government efforts to “maintain the decorum of the consultations” may keep the government from engaging in the consultations at all. On the other hand, courts may conclude that “preserving order in an online space to which no one is physically confined” is less important and the risk of using such regulation to suppress expression based on viewpoint may be too great. The chapter explores these and other questions with regard to communication rights and also covers information rights and potential liability of government actors. Important in their own right, these sections also highlight some interesting difference between United States and European Law. For example, EU countries tend to create greater obligations for the government to actually consider public comments (for example, by explaining why public suggestions were not adopted); they also lack a principle of sovereign immunity that generally protects executive officials from suit. Because there is so much uncertainty in these areas—many of the best guesses as to the legal rules are based on decisions in the “offline public sphere”—the chapter urges governments to consider these issues “head on and adopt (or eliminate) legal rules after squarely considering their implications for online forums.” The chapter provides a great roadmap for fulfilling that charge.


Peter M. Shane, Pro: Resolved, Presidential Signing Statements Threaten to Undermine the Rule of Law and Separation of Powers, in Richard J. Ellis & Michael Nelson eds., DEBATING THE PRESIDENCY, CONFLICTING PERSPECTIVES ON THE AMERICAN EXECUTIVE (2d ed. CQ Press 2010).

This interdisciplinary text, mixing political scientists with law professors, tackles contemporary normative issues regarding the presidency by setting up each chapter as a debate on particular issues. In this chapter, Peter argues against presidential signing statements while Professor Nelson Lund adopts the contrary position. Presidential signing statements as debated here are those that indicate doubts about the constitutionality of particular provisions of the bills the President signs or otherwise unilaterally reinterpret certain provisions. In this form, there were only about 100 such statements in American history prior to the Reagan presidency, when Attorney General Meese began their strategic use. President Reagan issued seventy-one. The first president Bush would use this method to editorialize on more than one thousand statutory provisions.

Peter’s entry explains the nature of these statements with examples and raises two fundamental objections. First, “signing statements have now become a burgeoning and largely unmanageable mass of obscure, politicized, and conclusory quasi-legal objections to legislation;” from a purely mechanical perspective, their meaning and force is thoroughly uncertain, and this confusion itself undermines rule-of-law values. The second problem, as described by the entry, is more subtle but also more profound. While the statements themselves do not have much power as law and may not even have much power in directing actors within the executive branch, Peter argues that “[t]he repeated utterance of the president’s imagined immunity to both important and obscure forms of congressional regulation cannot help but shape executive branch behavior by inducing allegiance to norms of hostility to external accountability.”

The chapter develops this argument that signing statements lend potentially powerful support to a culture of disrespect for the rule of law by the executive branch and hence threaten separation of powers as well, with examples particularly from the presidency of George W. Bush.


Multimedias

Peter M. Shane (w/Liz Gjestvang), Information Stories, Sustaining Democracy in the Digital Age (The Ohio State University, 2010).

Information Stories is a collection of short digital narratives relating the importance of information, and local information in particular, to a community, and the perils (e.g., decline of newspapers and other local organizations) and opportunities (e.g., the internet and social networking) presented in a digital age. There are a dozen diverse stories from ordinary people (with self-narration and wonderful related video images) that range from identifying and publicizing local health crises, to responding to a local bridge collapse. The different means employed for promoting information and their effect on community activism shown in these stories are powerfully and vividly demonstrated by these storytellers. The stories presented in this innovative format express the meaning and force o f concepts like “information flow” and “e-democracy” in a way that the written word cannot. Peter also provides an introduction and conclusion that tie the stories together. The stories can be viewed, separately or collectively, through the project’s website: informationstories.org.


Reports

Peter M. Shane (lead drafter, w/Charlie Firestone and Michael Fancher), The Aspen Institute, Informing Communities, Sustaining Democracy in the Digital Age, The Report of the Knight Commission on the Information Needs of Communities in a Democracy (October 2009).

The Knight Commission was formed in 2008 to recommend policy reforms and other public initiatives to address the information needs of American communities in the 21st century. In the words of the book-length Report, “information is as vital to the healthy functioning of communities as clean air, safe streets, good schools and public health.” Indeed, in the Report’s view, access to and engagement with information is critical for both communities and individuals to create, maintain and put to use both these and other public goods.

The Report concludes that a combination of private enterprise and social investment strategies are necessary to building a vital information infrastructure and provides a detailed series of recommendations aimed at achieving this result. These recommendations emphasize ensuring government openness, universal information access and education directed at ensuring widespread engagement with the information that results. These recommendations concern government, educational institutions, journalistic entities, internet policy makers, libraries and others. The Report includes two particularly interesting appendices, one a short quiz of sorts to measure the “information health” of a particular community (see pp. 73-75), the second a substantial list of “action items” for everyone from Congress to individual citizens that could be a part of a vigorous effort to create informed communities (see pp. 77-84).