Yesterday evening, Columbia announced that it had struck a so-called “deal” with the federal government—including a $200 million fine, audits of its undergraduate admissions, oversight of various academic programs, and other conditions. Even as the University regains some federal research funding (or perhaps just the opportunity to compete for it), its faculty have noted that deals “like Columbia’s […] are fundamentally inconsistent with the logic of academic freedom.”
That quote comes from Columbia Law’s David Pozen, writing at Balkinization, where he considers the troubling appearance of a phenomnenon he calls “Regulation by Deal”:
Without any clear grounding in the civil rights statutes themselves, the Trump administration has begun to effect another, more dramatic regulatory shift—away from guidance documents addressed to the entire sector, and toward bespoke deals foisted upon individual schools after summarily terminating or threatening their federal funds. It is important to emphasize that this shift does not reflect an increased interest in enforcement, leading to an increased number of consent decrees or out-of-court settlements. These deals will not be the product of thorough investigations or judicial findings of misconduct by the schools in question. No established legal process was followed for the Columbia agreement; no genuine legal dispute was resolved. The dealmaking is the main regulatory event from start to finish.
This emerging model raises profound concerns not just for universities’ budgets and independence but also for the rule of law. By relying on “particular transactions to effectuate government policy,” scholars have observed in other contexts, regulation by deal bypasses all of the “notice, comments, [and] due process standards that we ordinarily expect from public administration.” While guidance documents may share some of these deficits, they are not actually binding on regulated parties and at least aspire to uphold bedrock legal principles of “generality, clarity, publicity, stability, and prospectivity.” The style of regulation reflected in the Columbia deal is at once far more coercive and far more arbitrary—opaque in development, unpredictable in application, deeply susceptible to personalism and corruption, and only contingently connected to the laws Congress has written. As compared to the familiar fare of public administration, “one-off dealmaking is more about back-door terms, forceful results, and unequal application of standards, to the extent standards exist at all.”
Pozen’s analysis has generated a lot of interesting conversation, including from other Columbia faculty. Adam Tooze, for instance, writes that inasmuch as the current “adminsitration’s governance by bullying is clearly a departure in style, tone, and ferocity,” it is nevetheless “part of a piece with the increasingly crude style of ‘lawfare’ and ad hoc deal-making that characterizes much of American corporate, business and public life today.” Tooze is correct that “ad hoc governance” has a history that extends further into the past than the beginning of the current century. But as I discuss in my recent book, the American public has had a tense relationship with this kind of irregularity (and especially legal irregularity) since the earliest days of the Republic. Today’s emergence of a broad practice of “Regulation by Deal” (rather than the rare ad hoc exception to general principle), in fact, reminds me of failed legislative philosophies from the America’s post-Revolutionary period.
In the third chapter of my book, I spend some time with the analysis of “equity”—here, understood as judicial discretion in interpreting statutes—laid out by Gordon Wood in The Creation of the American Republic 1776–1787 (1998 ed.). In the post-Revolutionary period, Wood explains, Americans were reluctant to empower judges to bend statutory language, for the people had just fought (and won) a war to craft their own laws. The appetite for popular sovereignty was strong. Wood writes, “Reform-minded Americans were thus committed to equity as the basis of law, but by resting their plans on legislative enactment they at the same time denied the juducial discretion that made equitable interpretations necessary and possible” (301). Judges, in other words, would take back seat to The People in determining what fair laws should look like in America.
Sidelining judges in this way had profound effects on the shape and application of statutes. By curtailing opportunities for judicial discretion and attaching themselves to the letter of law, post-Revolutionary Americans experimented with a legal system that demanded specific statutes to apply to specific situations. Without judicial discretion, laws could remain neither general nor in need of interpretive application.
But drafting statutes for every possible application and boxing out the possibility for fair-minded interpretation of the law proved disastrous. “It began to seem to some that Americans could not have specific legislative enactment and equity [that is, legal fairness] at the same time,” Wood explains. “When particular statutes had to be enacted for every circumstance, said Moses Mather in a Connecticut election sermon in 1781, the laws proliferated and resulted in a confusion that wicked men turned to their private advantage” (303). This legislative approach of relying strictly on “particular statutes” was “not always able to guarantee equity by their enactments, and in fact seemed to be becoming the greatest source of injustice in the society” (304).
Wood’s history of the early American experiment with a statutory approach that shunned general principles and privileged hyper-particularized statutes immediately came to mind as I read Pozen’s analysis. As I cite above, Pozen worries that the “style of regulation reflected in the Columbia deal is at once far more coercive and far more arbitrary—opaque in development, unpredictable in application, deeply susceptible to personalism and corruption, and only contingently connected to the laws Congress has written.” Americans have always had an uneasy relationship with the application of general statutes and ad hoc justice—real tensions that are inevitable with any commitment to the rule of law. But increasingly, the government pretends it can craft new standards, new regulations, new punishments, and new principles for every “deal” it strikes. If the state abandons principle for particularity, we may well end up again with a “confusion that wicked men turn to their private advantage.” That confusion, in fact, may already be upon us.
