Category: 98:3

Rural America today is at a crossroads. Widespread socioeconomic decline outside cities has fueled the idea that rural communities have been “left behind.” The question is whether these “left behind” localities should be allowed to dwindle out of existence, or whether intervention to attempt rural revitalization is warranted. Many advocate non-intervention because rural lifestyles are inefficient to sustain. Others argue that, even if the nation wanted to help, it lacks the law and policy tools to redirect rural America’s course effectively.

This Article argues that we do have the law and policy tools necessary to address rural socioeconomic marginalization and that we neglect to use those tools to our own collective detriment. The Article focuses specifically on the tool of economic regulation, meaning government oversight of entry, exit, and participation parameters for service providers in certain markets. Robust historical precedents establish that strategic economic regulation is uniquely capable of sustaining rural communities, and that using it to do so is in fact critical to national resilience.

Rural diseconomies of scale—the problem of higher costs per capita and lower demand for resources in population-sparse regions—must be understood as a keystone question concerning whether and how rural communities can gain access to the amenities they need to survive. The pre- 1970s regulatory regime governing infrastructure industries helped overcome the problem of diseconomies of scale by safeguarding rural access to services that precede economic growth. Infrastructure industries’ subsequent abandonment of rural America during the deregulatory era amounts to a market failure because the nation remains dependent on rural communities for food and energy production, environmental stewardship, political stability, and retreat from urbanism. Thus, for the benefit of all, a broader conception of infrastructure and corrective interventions into infrastructure markets must help connect rural America to community- sustaining systems like broadband internet and national grocery store chains. Ultimately, this discussion also offers an answer to the problem of the so-called “urban/rural divide”: enhancing “urban/rural connection,” both literally and symbolically.

Constitutional theory has long been influenced by the idea that the Supreme Court exercises “passive virtues,” avoiding politically divisive cases that threaten its legitimacy. The Article inverts the logic. Supreme Court Justices (and other judges too) do more than avoid divisive cases that could weaken the Court. They seek “unity” cases—meaning cases where law and politics align—that could strengthen the Court. When judges seek unity cases to enhance their legitimacy, they exercise active virtues.

We develop the theory of active virtues and demonstrate its use. Our case studies come from the U.S. Supreme Court and tribunals worldwide, and they involve issues like voting, piracy, and police. Following the case studies, we situate active virtues in a broader theory of judicial power. According to our theory, courts balance divisive and unity cases like investors balance stocks and bonds. This portfolio theory of judicial power illuminates a range of topics, including docket control, activism, the counter-majoritarian difficulty, and the rule of law. Recognizing active virtues may have implications for today’s Supreme Court, which faces a legitimacy crisis.

Agencies make many of their most important decisions in rulemaking well before the publication of a Notice of Proposed Rulemaking (NPRM), when they set their regulatory agendas and develop proposals for public comment. Agencies’ need for information from outside parties and openness to alternative courses of action are also generally at their greatest during these earlier stages of the rulemaking process. Yet regulatory agenda setting and rule development have received virtually no scholarly attention. The literature generally treats what happens before publication of the NPRM as a “black box” and suggests that agenda setting and rule development are primarily influenced by political considerations and pressure from well-organized groups. Other interested stakeholders, including regulatory beneficiaries, smaller regulated entities, state, local, and tribal governments, unaffiliated experts, individuals with situated knowledge of the regulatory issues, and members of the general public, are routinely absent.

While there is undoubtedly much truth to this understanding, a recent study we conducted for the Administrative Conference of the United States unearthed significant efforts by numerous federal agencies to engage the public long before the publication of an NPRM. The existing efforts, however, tend to be relatively unstructured, unsystematic, and ad hoc. Moreover, many opportunities for public engagement are voluntary and self-selecting, which do little to overcome the barriers to participation by traditionally absent stakeholders. Rule development thus warrants more systematic focus and attention to ensure that agencies fully engage all relevant stakeholders in each rulemaking in which they have relevant knowledge, experience, or views—thereby promoting the democratic aspirations of regulation.

This Article lays the theoretical and practical foundation for more fully democratizing rule development by envisioning what a robust institutional commitment to meaningful public engagement in agenda setting and rule development would entail and developing a structural framework for facilitating quality participation by traditionally absent stakeholders during these crucial early stages of rulemaking. Democratizing rule development would not only improve the quality and legitimacy of agency rules, it could also help to build a culture of civic participation to address the ailing health of our American democracy.

The law regulates some of society’s most significant relationships through status. Yet social and legal changes can diminish a status’s effectiveness and importance. The debates surrounding worker classification and nonmarital relationship recognition provide two pressing examples. By some estimates, over one quarter of all U.S. workers are part of the gig economy. If these gig workers are classified as employees, many rights will flow to them by virtue of that status; if they are instead classified as independent contractors, they get almost none of them. This binary approach exists in the family law context as well. Over 35 million adults are in committed nonmarital relationships marked by some combination of physical or emotional intimacy, property sharing, cohabitation, and shared childrearing. But the law will treat the overwhelming majority of them as single, meaning that unlike spouses, they will find themselves without legal protections and subsidies throughout the relationship and at its end. The problem in both contexts is a mismatch between established statuses and emerging social realities.

This Article investigates the persistence of status-based regulation through the lenses of employment and marriage. In doing so, it makes four contributions. First, it identifies the relevant features of status and the tradeoffs inherent in regulating through status. Second, using the examples of gig workers and nonmarital partners, it shows how the features of status lead to the emergence of regulatory voids. Third, it argues that status-based regulation is inevitable, both because of practical political considerations and because the most obvious alternative to status-based regulation, contract, is necessarily shaped by the relational context and therefore devolves to status. Fourth, with reform as the only possibility, the Article proposes institutional design questions to guide future reform efforts.