Brad Lipton of the Roosevelt Institute has written Statutory Hammers: Legislative Drafting in an Age of Cynical Litigation, Harvard Law School Journal of Legislation. Here is the abstract:
Over the past decade, cynical litigation in our federal courts has fundamentally altered the operation of the administrative state. Agency rulemaking now unfolds against a backdrop of forum shopping and activist judging that often derails regulation from ever taking effect. This Article argues that Congress should respond to this dynamic by deploying strong statutory default provisions—“hammers”—that take effect absent timely agency action. While prior scholarship has treated hammers primarily as deadline-enforcement tools for administrative agencies, this Article emphasizes their structural function in this era of cynical litigation: hammers reshape incentives for agencies, regulated entities, and judges, channeling disputes out of court and into a productive rulemaking process. A comparative case study of mortgage lending and debit-card interchange-fee regulation under the Dodd-Frank Act illustrates how legislative design can determine whether Congress’s intent gets reflected in policy or instead is an empty gesture. Finally, the presence of statutory hammers in existing law should affect the calculus of regulators in crafting regulations and other stakeholders, such as public interest groups, in choosing rules to challenge.
