Beyond the APA: rulemaking In the real world.

The federal Administrative Procedure Act (APA)(1) is, as federal statutes go, relatively short. Nevertheless, in its fourteen main statutory sections,(2) it explicitly defers to or references non-APA and non-APA-related law twenty-eight times, making it clear that the full import of its requirements cannot be determined without reference to other law.(3) This "other law" of course includes the federal Constitution; in addition, Congress and several presidents have been willing to modify or add to the procedures that federal agencies must follow. As a practical matter, a federal agency can almost never look solely at the APA and determine with certainty the procedures that it must follow for any given agency action.

Because of unfortunate but largely unavoidable constraints on time and focus, however, Administrative Law courses often leave law students with exactly the opposite impression. In particular, although Administrative Law texts do generally spend time with the largely settled constitutional law issues that allow the administrative state to exist, they otherwise tend to focus almost exclusively on the APA and to downplay the day-to-day importance of--and the wide variety of administrative law practice that results from--agencies' authorizing statutes, the various other statutes governing agency procedures, and Executive Orders.

Although he does not write for law students--or even for lawyers--and although he consciously confines his focus to federal agencies and to rulemaking, Cornelius M. Kerwin offers a corrective vision of administrative law in his newly revised Rulemaking: How Government Agencies Write Law and Make Policy.(4) Kerwin by no means ignores the APA and in fact discusses its provisions in some detail. However, he places the APA in its historical context, describing the 1946 act as only one (albeit important) step in the much longer development of administrative law and practice. As a result, instead of focusing on the APA's provisions, he emphasizes that "[c]ontemporary rulemaking is a highly developed process, subject to a complex web of legal requirements."(5)

      While it is true that the basic rulemaking provisions of the APA have
   never been significantly amended in the more than fifty years since
   passage, we should not conclude that the act thoroughly dominates the
   making of rules today. Most important rulemaking is not currently conducted
   according to the minimalist model of the APA, if it ever was. Minor and
   routine rulemaking is also not carried out in tight accordance with the
   APA, but for different reasons. The fact that the relevant sections of the
   APA have never been extensively amended does not mean that Congress, the
   president, the courts, or the agencies themselves have not been busy
   altering rulemaking since soon after the act passed.(6)

Nevertheless, Kerwin finds that these more recent alterations to administrative procedure share three common themes with the APA and the broader history of administrative rulemaking: information, participation, and accountability. These themes become the organizing principles of his later chapters.(7) Under the topic of information, Kerwin discusses the roles of agencies' authorizing statutes, the National Environmental Policy Act of 1969 (NEPA),(8) the Regulatory Flexibility Act (RFA),(9) the Paperwork Reduction Act (PRA),(10) and executive orders. His discussion of public participation in rulemaking expands on these provisions to include hybrid rulemaking, the Federal Advisory Committee Act (FACA),(11) the Negotiated Rulemaking Act of 1990,(12) the Freedom of Information Act (FOIA),(13) the Privacy Act of 1974,(14) the Government in the Sunshine Act,(15) and the Small Business Regulatory Enforcement Fairness Act of 1996.(16) Finally, his discussion of accountability focuses on the presidential and congressional uses of review requirements--especially review procedures through the Office of Management and Budget (OMB), the various forms of the legislative veto, and a new discussion of Congress's "Corrections Day"--before turning to a more standard (at least for lawyers and law students) discussion of judicial review under the APA itself. By the end of Rulemaking, Kerwin has thoroughly supported his view of the APA as merely a minimum starting point for agency procedures and has given his reader an appreciation of the wide variety of requirements, pressures, and agency responses that go into rulemaking.

Beyond this corrective vision of the APA's role in agency procedure, the value and the power of Rulemaking for both law students and practitioners lies mainly in Kerwin's research regarding, and descriptions of, the specific practices that federal agencies use in promulgating their rules. Particularly valuable in this regard is Kerwin's chapter on "The Management of Rulemaking,"(17) which is also one of the most extensively revised and updated chapters in the new edition. For the original 1994 edition,(18) Kerwin both reviewed agency documents and surveyed experts in thirty-five federal agencies that had "substantial rulemaking responsibilities, as measured by the volume of rulemaking reported in the 1990-1991 regulatory program of the president."(19) For the 1999 revision, he added new agency documents and interviewed personnel in the various agencies for updates on their procedures.(20) The results often read like an insider's report on what federal agencies really do when rulemaking. For example, when discussing how federal agencies set priorities for writing rules, Kerwin offers the following new specific illustration:

   To better handle external pressures, the Occupational Safety and Health
   Administration (OSHA) brought "stakeholders" into the priority-setting
   process. In 1994 and 1995, as part of a National Performance Review
   initiative, OSHA consulted with other federal agencies, labor unions,
   industry leaders, professional groups, and academia to identify the worst
   occupational hazards. Then in late 1995 OSHA announced that eighteen
   priority hazards had been identified by this process and that it would take
   both regulatory and nonregulatory actions to deal with them.(21)

Environmental and natural resource law practitioners and students will be happy to learn that environmental agencies feature prominently in Kerwin's research; the agencies he surveyed included various agencies within the Department of Agriculture, the National Marine Fisheries Service, the Department of Energy, the Office of Surface Mining, the Minerals Management Service, the Bureau of Land Management, and four offices within the Environmental Protection Agency (EPA).(22) In addition, EPA is the specific agency that Kerwin uses most often to illustrate his various points about the rulemaking process, including information gathering for risk assessment,(23) time needed for promulgating rules and statutory deadlines,(24) and the effects of judicial review.(25) Kerwin has continued to highlight EPA in the 1999 edition of Rulemaking, adding new discussions of its "tiering" of rules,(26) its replacement of planning documents with analytical blueprints,(27) the evolution of its work group model for writing rules,(28) the effect of the Small Business Regulatory Enforcement Fairness Act of 1996 on its air pollution rules for nonroad diesel engines,(29) and its Project XL, through which EPA involves individual firms in rulemaking.(30)

Kerwin thus offers an up-to-date description of real-life federal agency rulemaking well worth reading. Readers with legal educations are, however, likely to notice a few disturbing omissions, simplifications, and peculiar phrases(31) in Kerwin's discussions of the law.(32) For example, Kerwin notes that "there are always going to be instances when agencies do not perceive the action they are taking as anything more than a clarification of existing rules or policy" and immediately argues that "any clarification will have the effect of transforming a gray area into one that is black and white."(33) However, he barely discusses the legal distinctions between policy statements and interpretive rules, on the one hand, and binding substantive rules, on the other, nor does he explore the protections available to regulated parties when a federal agency tries to promulgate substantive rules without using proper procedures. Moreover, in his discussion of judicial review under section 706 of the APA, Kerwin seems completely unaware that certain agency requirements and actions--including some of the procedures added through the congressional statutes and executive orders he discusses elsewhere--are legally unreviewable in court.(34)

It is not Kerwin's purpose, however, to write a law textbook, but instead to describe the effect of legal processes and judicial review on the day-to-day realities of rulemaking. This he does quite well, delivering a political science perspective on the administrative process that lawyers and law students previously unfamiliar with Rulemaking should find challenging and enlightening.

In contrast, readers already familiar with the 1994 version of Rulemaking may find little to arouse new interest in the 1999 edition, which is better classified as an update than any kind of extensive rewriting or revision. Most of the changes Kerwin has made fall into one of the following three categories: 1) updates to give a final perspective on the Reagan/Bush years and/or to add developments during the Clinton Administration, 2) updates to take account of legislative changes in the last five years, or 3) updates to incorporate intervening studies of the rulemaking process. The first category includes discussions of the 1990s and the Clinton Administration's legacy,(35) Executive Order 12866,(36) the Regulatory Working Group,(37) rulemaking review during the Clinton Administration(38) and its approach to public participation,(39) as well as a rewritten and updated section on OMB review of rulemaking entitled "Accountability through Review: The Reagan/Bush Program."(40) Kerwin's legislative updates emphasize the Small Business Regulatory Enforcement Fairness Act of 1996,(41) but he also mentions President Clinton's 1995 veto of the Comprehensive Regulatory Reform Act,(42) the 1995 amendments to the PRA,(43) the 1996 Telecommunications Act,(44) and the Regulatory Improvement Act of 1998.(45) Finally, as already mentioned, Kerwin has significantly updated his chapter on "The Management of Rulemaking," and updated research also appears throughout his chapter on "Participation in Rulemaking," which also includes a significantly revised and expanded discussion of regulatory negotiation.

Five years worth of updates and a Democratic presidency, however, have not caused Kerwin to alter Rulemaking's conclusion in any significant way. In his conclusion proper, as in 1994,(46) Kerwin skimps on his discussion of proposed improvements for federal rulemaking to conclude instead that "fundamental reform must account for other problems that are not really those of rulemaking, although they are clearly reflected there. These problems go to the very core of our political system and the most fundamental characteristics of our basic institutions."(47) In Kerwin's view, moreover, "[t]o attempt fundamental reform of rulemaking without reform of these larger institutions and forces is futile.... To fix what we think is broken in rulemaking, we must fix the core elements of our political system from which the problem truly arises."(48)

Beyond these ambitious goals, however, Kerwin's desire for rulemaking reform is rather unfocussed. Indeed, one of the simultaneously most frustrating and most thought-provoking aspects of Rulemaking is that Kerwin never tells his readers what exactly he thinks is "broken" in federal rulemaking. Until the conclusion, in fact, the reader strongly suspects that he does not in fact see much wrong with rulemaking at all. Although significantly expanded in scope in the last three decades, Kerwin informs us, rulemaking has always been part of American government. Moreover, he applauds the APA's broad definition of "rule": "Our experience since the time this definition was framed makes it plain that the decision to put no substantive limits on the potential reach of rules was wise. Rules covered a large range of topics in 1946; in 1998 that scope is virtually limitless."(49)

Congress is apparently part of the problem. Kerwin concludes that "[i]f rules are to be more faithful to congressional intent, and thus to the will of the people as expressed by their representatives, they must be sufficiently specific and unequivocal that the legislative purpose cannot be mistaken."(50) Overall, however, Kerwin is more sympathetic to Congress than condemning of it. Noting that "support for rulemaking is implicit in the public's seemingly insatiable appetite for new public initiatives and programs,"(51) Kerwin often figures rulemaking as an essential component of legislators' ability to respond to the demands and needs of their represented constituents. "[R]ulemaking, as a mechanism for refining law and policy, has been essential to the government's effort to assume responsibility for the range of activities demanded by voters. It was and remains an inevitable and indispensable by-product of any significant legislative activity."(52) "[I]n order for government to be truly responsive to the incessant demands of the American people for public programs to solve private problems, rulemaking is essential."(53) "Rulemaking adds opportunities for and dimensions to public participation that are rarely present in the deliberations of Congress or other legislatures."(54) "[R]ulemaking clearly provides advantages over the legislative process, which is overloaded with demands for action but impeded by shortages of time and expertise."(55)

In contrast to this sympathy for the congressional dilemma, Kerwin levels an unflinchingly accusatory finger at the American people. Indeed, Kerwin has added sections that both foreshadow and darken his final chapter's view of rulemaking as the inevitable outgrowth of an American population that wants its government to solve all of its social problems, analogizing the American public to

   the drug- or alcohol-dependent person who despises the object of his or her
   addiction but cannot resist for long the siren call of the bottle, needle,
   or pipe. However much faith Americans have lost in the ability of
   government to solve problems or act fairly, they have not enthusiastically
   embraced the only clear alternatives. We usually do not ignore problems,
   tough them out on our own, or rely solely on the dynamics of the free
   market or the munificence of charities and philanthropists, despite the
   championing of these alternatives by popular politicians.(56)

This public has, in essence, abdicated individual responsibility for government, an abdication that threatens democracy generally:

   The shortcomings in public participation in rulemaking go deeper than the
   openness of the process and the resources available to those who are
   affected. If we are to avoid a "government by the interested" and a
   rulemaking process in which those not immediately and significantly
   affected have no role in the formulation of law, we must reverse the forces
   that have led to the issue networks and policy subsystems that dominate our
   political system. We must convince those with little or no direct stake in
   the outcome of a rulemaking that they, too, should be concerned about the
   result. This is a very tough sell when people are able to keep up with only
   a fraction of the issues that profoundly affect their lives and become
   involved in only a few of them. In a nation where so many fail to vote, is
   it reasonable to expect an outpouring of interest in rulemaking from
   average citizens with comparatively little to win or lose? Perhaps not, but
   lowering our expectations is dangerous.(57)

To run with Kerwin's own analogy, therefore, Congress may be a facilitator, but the true problem--at least as far as Kerwin's most potent imagery indicates--is that insatiable, government-program-addicted public, for whom rulemaking becomes a reflection of a more generalized apathy toward individual participation in government.

But if citizen apathy were the sole problem in federal rulemaking today, one would expect Kerwin to show how "average citizens" are crucial to the process. Instead, Kerwin portrays rulemaking as a process where individual voices--especially those of regulated citizens--are largely irrelevant. Rulemaking throughout Rulemaking is a process in which groups work with, against, for, and through each other. In government, these groups include, naturally enough, Congress, the agencies, presidential committees, and, to a lesser extent, panels of judges comprising the federal courts.(58) Even when describing public participation, however, Kerwin elides individuals in favor of groups--interest groups. "Single individuals will become involved, but they will be less prominent than institutional participants. For this reason I focus on interest groups, broadly defined, in this examination of the participants in rulemaking."(59)

Whatever Kerwin says about the need for individuals to become involved, therefore, he shows that individuals regulated by federal agencies are never, as a practical matter, anything other than represented parties. Thus, it is not surprising that "average citizens" would opt not to participate in rulemaking, where they are neither needed nor particularly helpful. However, if there is no real room in the rulemaking process for individuals to effectively voice their opinions, it is difficult to see why citizen apathy is the cause or why the whole American system of government needs reworking as a result.

Nor does Kerwin do much to show or explain why citizens have any individual incentive to participate. The perspective of the regulated person who actually bears the weight of all this federal rulemaking is almost entirely missing from Rulemaking. Kerwin gives his readers only one image that even suggests why an "average citizen" really should care:

   Quite literally, rules govern American businesses from their very beginning
   to beyond their demise.... Before one enters certain businesses or
   occupations a license is required. The granting of a license, the
   qualifications needed to obtain one, and the conditions that are attached
   to it are determined by rules. Money is needed to start most businesses,
   and banks are often the providers. Banking rules determine in large part
   the availability of funds and the manner in which financial institutions
   make business loans. Assuming the owners of the business are prudent, they
   will want to protect their business from claims of damage arising from
   negligence or faulty products. Insurance regulations will determine whether
   they can get coverage and what it will cost.

      Where a business is located is not a decision that can be made without
   reference to rules....

      Once the decision to go into business is made and a location is
   selected, rules may affect who is employed and how they are treated by the
   new concern....

      What a new business produces and how that product is made are governed
   by a multiplicity of rules, some designed to protect workers, others to
   protect consumers, and still others to protect the environment....

      Once the business has a product to sell, rules may determine how it will
   be sold, how it will get to consumers, the price that is charged for the
   good or service, and the company's obligations after it has been bought....

      Rules determine under what conditions a firm can go out of business.(60)

Is this the addict public hoist by its own petard? Or is the prospective business owner an otherwise unacknowledged casualty of modern American rulemaking, trapped in an arduous maze constructed through the over-zealous representation of too many groups? Or is this simply standard operating procedure, an example of what rulemaking is supposed to accomplish? Kerwin never says--but this two-page exposition, unique to the text, haunts the rest of Rulemaking, leaving the reader to ask: Is this really what we wanted?

And with that question, Kerwin perhaps succeeds in promoting the reform he seeks, whatever that might be.

(1) 5 U.S.C. [subsections] 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (1994 & Supp. III 1997).

(2) Id. [subsections] 551, 553-559, 701-706 (1994).

(3) Id. [sections] 553(b)(3) (exempting certain rules from notice-and-comment procedures "[e]xcept when notice or hearing is required by statute"); id. [sections] 553(c) (requiring formal rulemaking "[w]hen rules are required by statute to be made on the record after opportunity for an agency hearing"); id. [sections] 554(a) (requiring formal adjudication procedures "in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing"); id. [sections] 554(d) (setting ex parte procedures for agency employees "[e]xcept to the extent required for the disposition of ex parte matters as authorized by law"); id. [sections] 555(d) (directing courts to sustain agency subpoenas "to be in accordance with law"); id. [sections] 556(b) (providing that the APA's formal adjudication procedures do "not supersede the conduct of specific classes of proceedings, in whole or in part, by or before boards or other employees specially provided for by or designated under statute"); id. [sections] 556(c) (subjecting the procedures available in formal proceedings to those within the agency's statutorily-given powers); id. [sections] 556(d)(1)-(2) (placing the burden of proof on the proponent of the rule or order "[e]xcept as otherwise provided by statute," and directing the agency to consider "the policy of the underlying statute" in determining whether a violation of [sections] 557(d) is sufficient to find against the violator); id. [sections] 557(d)(1) (establishing ex parte prohibitions "except to the extent required for the disposition of ex parte matters as authorized by law"); id. [sections] 557(d)(1)(D) (directing the agency to consider "the policy of the underlying statutes" in deciding whether to issue an ex-parte-contact-related show cause order); id. [sections] 558(b) (noting that "[a] sanction may not be imposed or a substantive rule or order issued except within jurisdiction delegated to the agency and as authorized by law"); id. [sections] 558(c) (requiring formal procedures for licensing unless "other proceedings [are] required by law"); id. [sections] 559(1)-(3) (clarifying that the APA does not "limit or repeal additional requirements imposed by statute or otherwise recognized by law, providing that evidence and procedure requirements apply equally to agencies and persons "[e]xcept as otherwise required by law," and establishing that a "[s]ubsequent statute may not be held to supersede or modify [the APA] ... except to the extent that it does so expressly"); id. [sections] 701(a)(1) (providing that other statutes can preclude judicial review under the APA); id. [sections] 701(a)(2) (disallowing APA judicial review to the extent that "agency action is committed to agency discretion by law"); id. [sections] 702(1)-(2) (providing that a person "aggrieved by agency action within the meaning of a relevant statute" can seek judicial review under the APA, and clarifying that nothing in the APA "confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought"); id. [sections] 703 (specifying that "[t]he form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute" and that the APA judicial review provisions apply only "[i]f no special statutory review proceeding is applicable"); id. [sections] 704(1)-(2) (recognizing that "[a]gency action made reviewable by statute" is subject to judicial review under the APA, and defining "finality.... [e]xcept as otherwise expressly required by statute); id. [sections] 706(2)(A) (allowing courts to set aside agency action if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law"); id. [sections] 706(2)(B) (allowing courts to set aside agency action that is "contrary to constitutional right, power, privilege, or immunity"); id. [sections] 706(2)(C) (allowing courts to set aside agency action that is "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right"); id. [sections] 706(2)(D) (allowing courts to set aside agency action that is "without observance of procedure required by law"); id. [sections] 706(2)(E) (allowing courts to set aside agency action that is "unsupported by substantial evidence in a case ... reviewed on the record of an agency hearing providing by statute").

(4) CORNELIUS M. KERWIN, RULEMAKING: HOW GOVERNMENT AGENCIES WRITE LAW AND MAKE POLICY (2d ed. 1999) [hereinafter KERWIN, 1999 RULEMAKING].

(5) Id. at 44.

(6) Id. at 56.

(7) See Steven Croley, Making Rules: An Introduction, 93 MICH. L. REV. 1511, 1518-22 (1995) (discussing these themes in the 1994 edition of Kerwin's book).

(8) 42 U.S.C. [subsections] 4321-4370d (1994 & Supp. III 1997).

(9) 5 U.S.C. [subsections] 601-612 (1994 & Supp. III 1997).

(10) 44 U.S.C. [subsections] 3501-3520 (1994 & Supp. III 1997).

(11) 5 U.S.C. App. 2 [subsections] 1-15 (1994 & Supp. III 1997).

(12) 5 U.S.C. [subsection] 561-5704 (1994 & Supp. III 1997).

(13) 5 U.S.C. [sections] 552 (1994 & Supp. III 1997).

(14) 5 U.S.C. [sections] 5524 (1994 & Supp. III 1997).

(15) 5 U.S.C. [sections] 552b (1994).

(16) Pub. L. 104-121, 110 Stat. 857 (Mar. 29, 1996) (amending Regulatory Flexibility Act, 5 U.S.C. [subsections] 601, 603-605, 609, 611, 612 (Supp. III 1997)).

(17) KERWIN, 1999 RULEMAKING, supra note 4, at 121-46.

(18) Cornelius M. Kerwin, RULEMAKING: HOW GOVERNMENT AGENCIES WRITE LAW AND MAKE POLICY (1st ed. 1994) [hereinafter KERWIN, 1994 RULEMAKING].

(19) KERWIN, 1999 RULEMAKING, supra note 4, at 127.

(20) Id.

(21) Id. at 128.

(22) KERWIN, 1994 RULEMAKING, supra note 18, app. C at 305-06.

(23) KERWIN, 1999 RULEMAKING, supra note 4, at 59-60.

(24) Id. at 107.

(25) Id. at 246-49.

(26) Id. at 130.

(27) Id. at 131.

(28) Id. at 148-54 (new material is on pages 153-54).

(29) Id. at 168.

(30) Id. at 177.

(31) For example, Kerwin notes that "[a]lthough a court may challenge a rule, it is not permitted to do so at any stage in the rulemaking process." Id. at 238 (emphasis added). Federal courts, of course, do not challenge agency rules sua sponte--a point Kerwin clearly recognizes in his discussion of standing on the same page.

(32) See also Croley, supra note 7, at 1528 (noting that "some of Kerwin's legal analysis is simplistic").

(33) KERWIN, 1999 RULEMAKING, supra note 4, at 173.

(34) See e.g., 5 U.S.C. [sections] 701(a) (1994) (APA judicial review does not apply if "statutes preclude judicial review" or "agency action is committed to agency discretion by law"); id. [sections] 570 ("Any agency action relating to or establishing, assisting, or terminating a negotiated rulemaking committee under this subchapter shall not be subject to judicial review."); id. [sections] 611(c) (1994 & Supp. III 1997) ("Compliance or noncompliance by an agency with the provisions of this chapter shall be subject to judicial review only in accordance with this section."); 44 U.S.C. [sections] 3507(d)(6) (Supp. III 1997) ("The decision of the Director to approve or not act upon a collection of information contained in an agency rule shall not be subject to judicial review."); Exec. Order 12866 [sections] 10, 58 Fed. Reg. 51,735, 51,744 (Oct. 30, 1993) ("This Executive order is intended only to improve the internal management of the Federal Government and does not create any right or benefit, substantive or procedural, enforceable at law or equity by a party against the United States, its agencies or instrumentalities, its officers or employees, or any other person.").

(35) KERWIN, 1999 RULEMAKING, supra note 4, at 21-28.

(36) Id. at 63.

(37) Id. at 78.

(38) Id. at 125-26, 226-27, 230.

(39) Id. at 176-79.

(40) Id. at 221-26. In this section, Kerwin also updated his Table 6-5, "Types of Action by OMB on Agency Rules," to 1997 and dropped five other tables that appeared in the 1994 edition. Id.

(41) Pub. L. 104-121, 110 Stat. 857 (Mar. 29, 1996).

(42) S. 343, 104th Cong. (1995); see S. REP. 104-89 (1995), reprinted in 1995 WL 333916 (May 26, 1995).

(43) Pub. L. 104-13, 109 Stat. 163 (May 22, 1995).

(44) Pub. L. 104-104, 110 Stat. 56 (Feb. 8, 1996).

(45) S. 981, 105th Cong. (1998);see S. REP. No. 105-188 (1998), reprinted in 1998 WL 241805 (May 11, 1998). The bill was not carried over at the end of the 1998 Regular Session of Congress.

(46) See also Croley, supra note 7, at 1532-33 (noting that Rulemaking "contains no specific prescriptions for nuts-and-bolts changes to existing rulemaking processes").

(47) KERWIN, 1999 RULEMAKING, supra note 4, at 276.

(48) Id.

(49) Id. at 4.

(50) Id.

(51) Id. at 7.

(52) Id. at 22.

(53) Id. at 157.

(54) Id. at 32.

(55) Id. at 33.

(56) Id. at 90.

(57) Id. at 277.

(58) To be fair, Kerwin does recognize that many court decisions are made by individual district court judges. Id. at 235. However, he spends much more time describing appellate panels and the fact that "[d]ecision making in the courts of appeal is collective." Id. Moreover, he also describes judges in terms of groups appointed by a given president, emphasizing that "[i]n many ways the most enduring legacy a president can leave is the federal judges he appoints during his term." Id. at 233.

(59) Id. at 184.

(60) Id. at 24-26.

ROBIN KUNDIS CRAIG, Assistant Professor of Law, Western New England College School of Law; J.D., 1996, Northwestern School of Law of Lewis and Clark College; Ph.D., 1993, University of California at Santa Barbara; M.A., 1986, The Johns Hopkins University.3