Administrative Law
Responsible Direction and the Supervisory Status of Registered Nurses
112 Yale L.J. 665 (2002) The National Labor Relations Board (NLRB or the Board) has, for many years, wrestled with the problem of whether various classes of professional employees who regularly exercise discretion and judgment in their jobs should be classified as "supervisors" and therefore denied the collective bargaining rights the National Labor Relations Act (NLRA) extends to other employees. The Act clearly recognizes that professional employees exercise some level of judgment and discretion. The Act, however, also makes "independent judgment" in the exercise of certain acts (e.g., hiring, firing, and promotion) the touchstone of supervisory status. So the distinction between supervisors and mere professional employees turns on the level of independent judgment exercised in certain capacities; this distinction becomes crucial to determining which employees receive bargaining protection. Reading as de minimis the amount of independent judgment needed to clear the supervisor threshold would remove professionals from the coverage of the Act completely--a result clearly at odds with congressional intent, given the express inclusion of professional employees in the Act. This inherent tension between the inclusion of professional employees and the exclusion of employees who exercise independent judgment has been at the root of much of this conflict. This Comment examines a recent Supreme Court decision, NLRB v. Kentucky River Community Care, Inc., that exemplifies the struggle over the classification of professional employees, specifically registered nurses, as "supervisors." The Board has consistently tried to classify nurses as nonsupervisory professional employees, while the Court has repeatedly cabined nurses within the class of supervisors. The Board's efforts have been focused on achieving protection for all nurses who exercise any kind of discretion, crafting statutory arguments that would narrowly interpret the supervisory-status requirements. Striking down these interpretive strategies, the Court has rejected broad protection for registered nurses. This Comment suggests a new interpretive strategy that the NLRB could adopt in order to afford at least some bargaining protection to certain classes of nurses and other professional employees, albeit not the broadest level of protection that the NLRB has previously sought. This strategy counsels focusing on one of the statutory criteria that defines a supervisor, the "responsibly to direct" term, which the NLRB has largely ignored in litigation. The plain text of the Act, standard interpretive tools, and policy considerations of the statute all militate toward differentiating mere professional employees from supervisors, not on the grounds of mere "independent judgment," but via the capacity in which that judgment is exercised. When a professional exercises independent judgment to carry out functions with respect to other employees and is accountable for the results and performance of the other employees, clearly he is responsibly directing these employees. This narrow reading of the "responsibly to direct" term splits the difference between inclusion of professional employees and exclusion of supervisors who exercise "independent judgment," resolving the inherent tension between these two terms. Responsible direction should therefore be the touchstone of supervisory status when the professional employee is not carrying out one of the specific functions that automatically qualify as supervisory.
Probability Neglect: Emotions, Worst Cases, and Law
112 Yale L.J. 61 (2002) In this Essay, my central claim has been that the probability of harm is often neglected when people's emotions are activated, especially if people are thinking about the worst-case scenario. If that scenario is vivid and easy to visualize, large-scale changes in thought and behavior are to be expected. The general phenomenon helps to explain public overreaction to highly publicized, low-probability risks, including those posed by abandoned hazardous waste dumps, nuclear waste disposal, and anthrax. Because rational people focus on the probability as well as the severity of harm, probability neglect is a form of quasi-rationality. I have also suggested that people try to avoid cognitive dissonance, sometimes by thinking that they are "safe" and by treating a low-level risk as if it were zero. This too is a form of probability neglect, one that can lead people to subject themselves to risks that, over time, have significant cumulative effects. The problem can be still more serious for governments, which deal with large populations and which should therefore address risks that are statistically small at the individual level. It follows that if a private or public actor is seeking to produce public attention to a neglected risk, it is best to provide vivid, even visual, images of the worst that might happen. It also follows that government regulation, affected as it is by the public demand for law, may well neglect probability too. If so, there are likely to be serious legal questions. An agency that neglects probability may be unable to establish a significant risk; such an agency will certainly have difficulty in demonstrating that the benefits of regulation outweigh its costs. If a statute requires an agency to establish that regulation is "requisite to protect the public health" or welfare, that agency might be required to investigate the issue of probability to establish that regulation is indeed "requisite." An understanding of probability neglect therefore illuminates some embryonic developments in administrative law; it might also pave the way toward more definitive developments in the future. There are larger normative issues in the background. If the public is neglecting a real risk, and wrongly believing itself to be "safe," surely government should respond. At first glance, however, the government should not respond if the public is demanding attention to a statistically miniscule risk, and doing so simply because people are visualizing the worst that can happen. The best response is information and education. But public fear is itself an independent concern, and it can represent a high cost in itself and lead to serious associated costs. If public fear cannot be alleviated without risk reduction, then government can reasonably engage in risk reduction, at least if the relevant steps are justified by an assessment of costs and benefits.
Reorganization as a Substitute for Reform: The Abolition of the INS
112 Yale L.J. 145 (2002) September 11th and the events that followed highlighted the shortcomings of our nation's immigration policies and their enforcement. Gaffes, such as the issuance of student visas to two of the hijackers on the six-month anniversary of 9/11, reinforced public perceptions that the Immigration and Naturalization Service (INS) is an agency beyond repair. Critics from both ends of the political spectrum have condemned the INS for its failures. As House Minority Leader Richard A. Gephardt stated, "We saw in the 9/11 incident some of the problems in the INS that many of us had seen before. . . . It became clear, I think, to everybody in the country and in the Congress that we needed reform." Consensus on the need for reform may be clear, but the question remains of what shape reform should take. Unfortunately, politicians have taken the path of least resistance by focusing on reorganization plans, rather than tackling the substantive issues that plague the INS. The Bush Administration and both houses of Congress have differed about what form a reorganization should assume. Their proposals share a misguided faith, however, in the efficacy of agency restructurings as a vehicle for reform. These proposals are the latest variation on an old theme. Reorganizations have long served as politicians' tool of choice for reforming the American administrative state. Such plans do have the potential to effect widespread change by shaking up agency culture and reallocating management responsibilities and personnel. At the same time, the literature on reorganizations casts doubt on their efficacy as a vehicle for reform. As Paul Light has highlighted, the pursuit of too many competing goals through agency reorganizations has often served as a formula for failure. Donald Kettl and John DiIulio have documented how the "overwhelming result" of agency restructurings has been "an intransigent gap between the effort invested and the results produced." In practice, the main virtue of reorganizations may be their role as politicians' symbolic substitute for tackling the underlying problems that agencies face. This Comment raises doubts about whether any of the reorganization proposals have the potential to accomplish their intended goals. It assesses the potential and limits of the five main proposals to reorganize the INS. This Comment concludes that the Senate proposal sponsored by Senators Ted Kennedy and Sam Brownback is the strongest in a set of weak options because it seeks to accomplish the least through restructuring and would leave agency leaders with the most flexibility to make future changes. Regardless of which proposal is enacted, the hope for reform lies in politicians' recognition that "restructuring alone is not going to solve all the problems, [but rather] just begins the effort" of reexamining the assumptions, goals, and approaches of immigration policy.
Tobacco Unregulated: Why the FDA Failed, and What To Do Now
111 Yale L.J. 1179 (2002) The book jacket promises drama. David Kessler, former Commissioner of the Food and Drug Administration (FDA), is said to tell "a gripping detective story," a story of "right and wrong" and "moral courage." The "unlikely heroes" are a small team of FDA employees who set out to battle the "lethal" tobacco industry. Kessler himself plays a role akin to James Stewart's Mr. Smith. This was real life, however, and the good guys did not win. Based on its investigations of the tobacco industry, the FDA answered the "question of intent"--whether tobacco manufacturers intended to produce nicotine's drug-like addictive effects--positively. This finding meant, for the FDA, that tobacco was a drug, and that tobacco therefore fell within its jurisdiction. The Agency acted on its claimed authority to promulgate rules aimed at reducing the incidence of youth smoking. These rules, for example, restricted underage purchases, prohibited billboard advertising near schools, and banned all but text-only ads in print publications that reach the young. The Supreme Court, however, taking the position that Congress did not intend to place tobacco within the Agency's jurisdiction, struck down the regulations. Of course, the FDA's battle, despite its ultimate failure to create a regulatory scheme for tobacco, was not wholly without effect. Its investigation brought to light information about the mechanisms manufacturers use to control the level of nicotine in their products. Industry documents obtained by the Agency showed plainly how tobacco products are designed to "deliver nicotine, a potent drug, with a variety of physiological effects." The Agency's evidence demonstrated, as the Supreme Court observed, "that tobacco use, particularly among children and adolescents, poses perhaps the single most significant threat to public health in the United States." Collectively, the information produced through the FDA's investigation "changed popular thinking forever." The investigation also spurred a televised congressional hearing at which tobacco executives denied the addictive nature of cigarettes, a position that helped further to discredit the industry in the public mind. The Kessler-led effort, in short, has put tobacco reform on the public agenda in a way that promises continuing change. Nevertheless, the fact remains that the FDA's regulatory effort failed. One aim of this Review is to explain why. I maintain that Kessler, perhaps driven by the sort of black-and-white dynamics that color the book jacket, sought too much. He claimed an essentially open-ended jurisdiction with unidentified aims. Had he argued for a more limited vision of the Agency's authority, one that, for example, confined itself to the youth smoking that was, in any case, the subject of the Agency's proposed regulations, the Supreme Court might have supported the Agency. When he announced the regulatory effort, President Clinton stated that the "cigarette companies still have a right to market their product to adults. But today we are drawing the line on children." The restrictions promulgated by the FDA did indeed specifically target youth smoking. However, the FDA's jurisdictional claim, based on the addictive effects of nicotine in tobacco, was more sweeping. For Kessler, gaining jurisdiction "was far more important than" any rule, since any rule "was likely to be relatively modest, at least initially." The implication of this and other comments is that Kessler intended for the FDA eventually to regulate adult smoking and quite possibly to reduce nicotine levels in cigarettes generally. The breadth of the FDA's jurisdictional claim allowed the industry to raise the stakes of tobacco regulation to unacceptable levels. The industry argued that the Agency's findings on the harmful effects of nicotine would necessitate an absolute ban on the sale of tobacco products, but that such a ban was not intended by Congress. Whether the FDA could ever have regulated adult use of tobacco products is debatable, but if the Agency wanted to leave the issue open it should have done so in a way that made further regulation subject to independent judicial review, by, for example, framing its initial jurisdictional assertions in a way that precluded the possibility of any de facto ban. By arguing for open-ended authority, Kessler ironically allowed the tobacco industry to inject its own question of intent, one that looked not to the minds of the manufacturers but to the thinking of congressional lawmakers. The first two Parts of the Review elaborate this thesis. Part I summarizes Kessler's account of the Agency's decision to take on tobacco and its search for evidence to support its jurisdictional claims. The summary points out the discoveries that the FDA made and highlights the ways in which Kessler designed the FDA's effort to regulate youth smoking as a sympathetic hook upon which to capture wide jurisdictional authority. Part II examines the Supreme Court decision that invalidated the FDA's rule. The Court's decision merits only brief mention in Kessler's discussion, which dismisses it as a straightforward outcome of conflicting ideologies. Whatever the Justices' motives, their opinions respond to basic questions about congressional intent and the scope of an agency's delegated authority. My analysis of the Court's opinion suggests that, given an agency's ability to adapt its legal powers to new circumstances in light of the statutory purpose of its enacting legislation, the FDA's youth-centered rule could have survived had the Agency argued for it on narrower jurisdictional grounds. In any case, the conflicting approaches expressed by the majority and the dissent regarding agency discretion, both generally and in the tobacco context, provide signposts for the FDA in determining its future role in the realm of tobacco regulation. Part III considers directly the future of tobacco policy. Echoing the crusading chords of the book jacket, Kessler makes a stark proposal: He suggests that tobacco companies "be spun off from their corporate parents" and transferred to a congressionally chartered corporation that satisfies the industry's product liability obligations and sells tobacco in brown paper wrappers. If, as one tobacco lawyer suggested, the industry must now "obtain[] permission from society to continue to exist," Kessler seems unwilling to grant such permission. I argue that his approach is riddled by too many unknowns, and is also constitutionally problematic, since First Amendment protections of commercial speech ordinarily preclude a total restriction on product promotion. Furthermore, the proposal ignores the advent of new types of risk-reduced tobacco products, "safer" cigarettes that may help those who cannot or will not quit smoking. A recent FDA-funded report by a committee of the Institute of Medicine (IOM) in the National Academy of Sciences found that these "reduced exposure" products could potentially be beneficial, if accompanied by an adequate regulatory scheme. Philip Morris, which is developing a smokeless cigarette, has also issued a new position paper acknowledging the need for legislation authorizing limited FDA regulation of tobacco. In the remainder of Part III, I argue that the FDA should be given regulatory authority over reduced-risk products. Moreover, even if no new authority is granted, the Agency's existing authority may by itself permit regulation. Although the Supreme Court rejected the FDA's broad jurisdictional claim, the Court was dealing with tobacco products generally, not with products specifically intended to reduce risk. I conclude by suggesting that tobacco companies should have an obligation, because of tobacco's addictive nature, not only to reduce smokers' risk but also to assist smokers who wish to quit. Most promising would be industry development and marketing of cigarettes containing progressively lower quantities of nicotine as part of a graduated program of cessation. Measures such as this would restore to tobacco users the choice of which addiction robs them.