Quick Note: Bureaucratic Legalism in the United States

After I wrote about the absurdly high construction cost of wheelchair accessibility in New York and the equally absurd timeline resulting from said cost, I got some criticism from people I respect, who say, in so many words, that without government by lawsuit, there’s no America. Here, for example, is Alex Block extolling the notion of accessibility as a right, and talking about how consent decrees can compel change.

But in reality, accessibility is never a right. Accessibility is a feature. The law can mandate a right to certain standards, but the practice of accessibility law in the United States is a constant negotiation. The Americans with Disabilities Act mandated full accessibility everywhere – but even the original text included a balancing test based on the cost of compliance. In practice, legacy public transportation providers negotiated extensive grandfather clauses, and in New York the result was an agreement to make 100 key stations accessible by 2020. Right now, the negotiation has been extended to making 95% of the system accessible by 2055.

And this is why adversarial legalism must be viewed as a dead-end. The courts are not expert on matters of engineering or planning, and in recognizing their technical incompetence they remain extremely deferential to the state on matters of fact. If the MTA says “we can’t,” the courts are not going to order the system shut down until it is compliant, nor do they have the ability to personally penalize can’t-do or won’t-do managers. They can impose consent decrees but the people implementing those decrees can remain adversarial and be as difficult as possible when it comes to coordinating plans; the entire system assumes the state cannot function, and delivers as intended.

So as adversarial legalism is thrown into the ashbin of history as it should be, what can replace it? The answer is, bureaucratic legalism. This already has plenty of precedents in the United States:

  • Drug approval is a bureaucratic process – the courts were only peripherally involved in the process of corona vaccination policy.
  • The US Army Corps of Engineers can make determinations regarding environmental matters, for example the wetlands that the deactivated railway to be restored for South Coast Rail passes through, with professional opinions about mitigations required through Hockomock and Pine Swamp.
  • Protection of National Parks is a bureaucratic process: the National Park Service can impose regulations on the construction of infrastructure, and during the planning for the Washington Metro it demanded that the Red Line cross Rock Creek in tunnel rather than above ground to limit visual impact.
  • While the ADA is said to be self-enforcing via the courts, in practice many of the accessibility standards in the US, such as ramp slope, maximum gap between train and platform, elevator size, maximum path of travel, and paratransit availability are legislative or regulatory.

Right now, there’s an attempt by the FTA to improve public transit access to people with limited English proficiency. This, too, can be done the right way, that is bureaucratically, or the wrong way, that is through lawsuits. Last year, we wrote a response to an RFI about planning for equity highlighting some practices that would improve legibility to users who speak English poorly. Mandating certain forms of clarity in language to be more legible to immigrants who speak poor English and recommending others on a case-by-case basis does not involve lawsuits. It has no reason to – people who don’t speak the language don’t have access to the courts except through intermediaries, and if intermediaries are needed, then they might as well be a regulator with ethnographic experience.

What’s more, the process of government by lawsuits doesn’t just fail to create value (unless 95% accessibility by 2055 counts as value). It also removes value. The constant worry about what if the agency gets sued leads to kludgy solutions that work for nobody and often create new expected and unexpected problems.

46 comments

  1. Eric2

    “Drug approval is a bureaucratic process – the courts were only peripherally involved in the process of corona vaccination policy.”

    The FDA (in the US) has gotten a lot of criticism regarding covid vaccines and for good reason (and I’m not talking about the antivax nutters). Not only do they not allow challenge trials which could have proved vaccine efficacy and safety much faster (saving hundreds of thousands more lives in the US alone), once the long observation trials were finished they dawdled on actually approving the vaccine. For example, announcing that they would have a meeting in 2 weeks to approve the vaccine and approving it then, at a time when thousand of people were dying per day, even though everyone already knew from the announcement that the vaccine was safe and effective. Since the approval of the initial vaccine they’ve been similarly delaying regarding vaccines for kids and vaccines targeting variants.

    Now I’m not saying involving the courts more in this process would necessarily have made things better, though it might have. I just wanted to point out how horribly bureaucratic agencies can mess up crucial processes, and that removing court oversight is not necessarily a way to make things better.

    • Alon Levy

      Yes, there’s been a lot of criticism. Bureaucratic legalism doesn’t mean the decisions are always right (the National Park Service was screwing up Metro service) or there is no controversy; it means the decisions are made by people who know something about the subject matter rather than about legal hermeneutics. It does mean that delays are measured in 2 weeks and not the years it takes courts to listen to every bad-faith critic (“advocate”), which is nice.

    • Jason

      Regarding challenge trials, consider the following arguments against it:
      https://www.statnews.com/2020/06/23/challenge-trials-live-coronavirus-speedy-covid-19-vaccine/

      In particular, it is just as likely that challenge trials would not have meaningfully sped up vaccine development. For example, you need to demonstrate efficacy across various age groups, and if you run a challenge trial involving a meaningful number of 65+ folks, a large percentage of whom die as a result, this may easily cause legal and ethical problems that significantly delay the vaccine trials instead.

      The FDA is certainly not flawless, but they are experts making well informed judgement calls.

      • Matthew Hutton

        The main challenge IMO with the Covid vaccination rollout has been getting disadvantaged groups to get the vaccine at all. Rolling the vaccine out even faster would have almost certainly made that worse.

        • Eric2

          You mean that disadvantaged groups would have gotten vaccines at about the same time they actually did, while advantage groups would have gotten vaccines earlier? More lives would have been saved, and more disadvantaged people’s lives saved too (due to less community spread). How is that a bad thing?

          • Matthew Hutton

            The big post April 2021 challenge has been to get disadvantaged people to get the vaccines at all.

            I don’t think rushing the approval process more would have helped with that – especially if more older people died during the trials.

      • Eric2

        No, there is no ethical problem with letting a handful of old people volunteering themselves to potentially die in order to save millions of other lives. And if there’s a legal problem, then fix the legal problem rather than throwing up your hands in defeat.

  2. adirondacker12800

    ….the planning for the Washington Metro…..
    Happened in ancient times when people took the advice of bureaucrats. It was rather radical of them to not take the advice of the highway engineers, not carve highways all over the place and build a subway/commuter train hybrid too. The bureaucrats wanted to carve highways all over New York City too. And lots of other places.

    • Alon Levy

      The US is not Britain, which had a strong civil service and then dismantled it because Maggie didn’t like what the experts were saying. In the 1960s the US already had an explosion of political appointees and a largely judicial civil rights effort. Transport planning was one corner of bureaucratic legalism – but the National Park Service was already demanding various changes in highways, and its interference with the Washington Metro was if I remember correctly the first time it was flexing its muscles on public transit and not roads.

      The road situation in New York was completely different. Thomas MacDonald was a bureaucrat and so were his successors at what is now the FHWA (and Trafikverket in Sweden was explicitly modeled on the FHWA as an apolitical agency). The urban renewal czars like Robert Moses were not – they were political operatives. Bureaucratic legalism is not the same thing as the party-state model that the modern Republican Party is going for.

      • Reedman Bassoon

        Speaking of Robert Moses …

        Following its acclaimed run at The Bridge Theatre in London, David Hare’s Straight Line Crazy starring Ralph Fiennes as New York powerbroker Robert Moses will make its Big Apple Off Broadway debut this fall at The Shed. Directed by Nicholas Hytner and Jamie Armitage, the play will run October 18-December 18.

  3. Henry Miller

    The problem with bureaucratic process is it depends on bureaucrats to care to get things. The FAA has been “testing” lead free airplane fuels for years and constantly comes back with “more study needed”, and congress lets them get by with this. Really that is the problem in NYC, the bureaucrats could have made accessibility a priority and fixed this long ago. I’ve said before (not here) that that the ADA passing in 1990 was final notice, there is no excuse for not noticing the way the accessibility wind was blowing in the 1980s, and doing something about it. NYC should have had 90% of there stations upgraded to accessible in 1990. I don’t know of a good solution to this.

  4. Alex B.

    Alon, thanks for expanding on your thoughts here.

    I do want to say – I’d sum up my position a bit differently. It’s not that adversarial legal systems are good, or better than the alternative. They are, however, integral to the entire US legal system.

    I’m all for a stronger, bureaucratic administration of these standards. But a law like the ADA does indeed codify a right; it states that people with disabilities have the right to participate fully in society, and a right not to be discriminated against. It’s a very broad mandate (by design).

    My broader point is that while criticisms of the American adversarial system are welcome, it’s not something that going to change. You can imagine much stronger ADA oversight from the USDOT, for example, but that’s not going to remove the ability for an outside group to sue, and it’s not going to change the likelihood of judges imposing rulings based on the wide array of laws on the books as well as longstanding judicial practices.

  5. Tiercelet

    This just keeps circling back to the same issue: we have adversarial legalism because America (always, but most especially contemporary America) lacks both the institutional-cultural values and the functioning state-and-democratic apparatus that would be required for bureaucratic regulation to work.

    TL;DR — adversarial legalism fails because it’s slow and prone to insufficiently forceful or ideologically backward judges. But there’s absolutely no reason to expect things would be faster or better if we replaced them with insufficiently forceful or ideologically backward bureaucrats.

    The bureaucratic state in the US has historically always been recognized as political. Prior to the 1880s, bureaucratic appointments were regarded as rewards to be handed out to political allies, the “spoils system.” Then there was a push to create a formalized, merit-based civil service–only, guess what? *That* was actually just driven by people who wanted to undo Reconstruction and reinforce white supremacy, by creating biased tests to exclude Black people from steady government jobs. (The Pendleton Act was named in honor of a Northern politician who supported slavery and opposed Reconstruction.) The civil service examinations did this so effectively that the adversarial legal system had to step in (1981’s Luevano v Campbell), because 100 years later, “merit” was still more a matter of skin color than actual competence. Subsequent “reform” efforts have essentially been to bust civil service unions–sounds good, right? Accountability! Except instead it’s just meant a renewal of the spoils system, so that parties can fire competent bureaucrats with the wrong politics and appoint incompetents on the basis of loyalty (or cruelty). See also “regulatory capture.”

    A functioning bureaucratic regulatory state requires a body politic with general agreement about government priorities, and the desire to separate out certain areas to be governed by expertise rather than political processes. But the entire history of the US civil service has been whipsawing between the extremes of a) political appointments without examinations, or b) structuring examinations to meet political ends.

    Surely you wouldn’t favor a Civil Service Exam for being on the MTA that was written by the current MTA heads and selected for reproducing those same organizational values?

    It would be *amazing* if we could have European-style bureaucratic civil service. Instead we’re in the process of dismantling any of it (just wait for today’s EPA decision to drop)–when we aren’t appointing Rick Perry to head the DOE without knowing what it does. (*This* American political process manages to politicize *keeping track of nuclear weapons*.)

    Is it broken? Absolutely. It is 100% broken. You should not have to sue agencies to get them to do their jobs. And we should push toward an actual, effective, competence-driven bureaucratic state. But ultimately you’re comparing the actual current adversarial-legalism framework and an idealized bureaucratic-legalism framework and finding out that the ideal is better. I’m sure that if we compared an actual American bureaucratic-legalism practice with a idealized adversarial-legalism framework, the idealized version would come out better in that comparison too.

    Finally, I do think you’re underselling the ability of courts to demand that agencies do their jobs better. There was a recent APS ruling in New York that required DOT to make pedestrian crossings accessible; the DOT wanted a 30-year time frame and cited all kinds of reasons that anything shorter would be infeasible, but the court blew them off and insisted on half that. It *does* work sometimes–it just usually doesn’t, because of issues that stem less from to adversarial legalism per se than from the overall nature of American governance.

  6. Paul

    While I agree that bureaucratic legalism can be faster and more consistent than settling things by lawsuit, it really depends on having a competent civil service that keeps the big picture in mind. There are plenty of examples of bureaucratic approvals devolving into agency turf battles and foot-dragging. For example, a bridge over a major river requires approval from several federal agencies which can take years and many design iterations to get. There was some talk during the Trump administration about requiring federal agencies to do their reviews concurrently and imposing a time limit on the process, which seemed so obvious that it should have been that way all along.

  7. Matthew Hutton

    The problem with this as a solution is that you’re likely to land up with a UK style situation where the bureaucrats gold plate everything. Plus you will still get objections from the public very few people in the public sector have any skills dealing constructively with the public.

    • Alon Levy

      Is that what’s going on in Britain? Because at least at the highest-altitude zoom, the British construction cost explosion coincided with Thatcher and the era of Yes, (Prime) Minister, and not with Wilsonian technocracy.

      • Matthew Hutton

        I think I made too many points here. Lets talk first about value for money.

        HS2 aims to free up capacity on both the west and the east coast mainlines.

        To do so it aims to relieve capacity issues on the west coast mainline between Harrow and Wealdstone and Rugby and then from Stafford to Crewe.

        On the east coast mainline it is trying to resolve capacity issues at Welwyn North. Is HS2 really the best value way of solving those problems or is it over-engineered? Especially given fast trains on those lines already average 85-90mph or a little more.

      • Matthew Hutton

        Also with regards to dealing with the public. I believe that engaging with local communities in good faith is the best way to avoid too many objections. It is certainly clear based on local election results and parliamentary by-elections in Chesham, Tiverton and north Shropshire that a substantial percentage of people in rural areas are prepared to change their mind on who to vote for. Given that I suspect you could win them over on infrastructure.

        Beyond that stuff – the biggest winner of HS2 is probably Reading – which gains probably 1.5-2 hours off current journey times by rail – yet it isn’t in the list of places you can use for journey times. That is a huge marketing fail.

        • Alon Levy

          Or you can just eliminate surface area for people who use the word “community” unironically to kvetch. No community meetings, for one, nothing good ever comes from them.

          • Matthew Hutton

            When network rail (re) built the Oxford Bicester line they didn’t do any community engagement and they ended up with a judicial enquiry which was super expensive.

            When network rail did the Reading station upgrade they did loads of community engagement and had far fewer problems.

          • adirondacker12800

            Until it’s the Highway Department’s experts giving their advice, then you are going to want to have something to say about it. We’ve tried giving the experts their way and didn’t like it.

          • adirondacker12800

            It wears out and needs to be replaced. It’s really too bad the world doesn’t work the way it does in your fantasies.

          • Matthew Hutton

            Alon, NIMBYs hold up and add costs to projects in both France and Germany as well – its not just an Anglo-Saxon thing.

            All I’m suggesting is that you manage it more constructively.

          • Alon Levy

            France has the déclaration d’utilité publique process, and Israel is literally in the process of arguing over a similar law to build the Tel Aviv Metro (it has a majority in the Knesset but there’s fighting over whether to bring it up to a vote).

          • Matthew Hutton

            France also has a much lower population density.

            I took a look at the recently opened LGV Sud Europe Atlantique and on it there are two reasonable sized towns, Angoulême and Poitiers, both of which have at least a few TGV trains a day so directly benefit from the project.

            If you were to replicate that in Britain for HS2 between London and Crewe you’d have to run HS2 trains in both directions with at least a few trains a day stopping at Uxbridge, Aylesbury, Leamington Spa, Coventry, Tamworth, Lichfield, Stafford and Stoke on Trent. Beyond that I guess you could argue that Amersham/Hazelmere/Wycombe should get a station and so should Brackley/Banbury/Buckingham. There’s also a fair few medium sized places with a population of 10-15k like Southam and Stone, Staffordshire that are big enough that if a road is shut there could be a decent amount of disruption.

            In contrast in France everywhere near the line tops out at around a couple of thousand people. So there’s no way they could argue that they deserve a station or that the disruption is likely to be significant – plus the places are tiny, all of which would make building a local movement challenging – and one where even with judges the most likely outcome would be planting a few more trees.

          • Alon Levy

            Everyone argues for a station, France just ignores them – and England is as centralized as France and can and does do the same; HS2 evidently doesn’t have stations at random locations like this. The population density line is mostly bunk – it’s an excuse used to justify higher British costs (costs that are somehow a lot higher than even in very high-density and also mountainous Taiwan and South Korea). The US sadly does not have a monopoly on total refusal to learn best practices from non-English-speaking places.

          • Matthew Hutton

            HS2 does have mitigations. There is the extensive tunnelling through the chilterns which is far more extensive than the tunnelling on the Chiltern Mainline or the West Coast mainline – especially as you point out that high speed trains go up hills much more easily than steam trains did when those lines were built.

            It’s difficult to see any evidence that France ignores plausible demands for stations either. I can’t see any towns with a metro area of at least 50k near the TGV lines that doesn’t have at least very easy access to TGV services. And there are only a handful of places without stations near the line that look to be bigger than a large village.

        • Brendan

          English speaking countries have developed and implemented an ideology of public planning that says that people who complain about things are 1) assumed to be representative and 2) to be celebrated as active citizens participating in democracy.

          This ideology is not a fixed feature of the land, however.

          • Alon Levy

            Germany has the same thing, this isn’t just the Anglosphere; it’s a big drag on Germany’s willingness to build high-speed rail.

          • Matthew Hutton

            My experience in business is that the people who raise lots of (constructive) feedback are very often raising issues that affect other customers too. So it’s difficult.

            It’s also possible using agile techniques to listen to feedback and deliver meaningful software results in ~8 weeks. And while a rail project is never going to be fully constructed using agile, you could use agile techniques during the planning phases which would allow you to gather feedback and create a good quality plan relatively quickly. And certainly those techniques would allow you to plan the project in less than the 15 years HS2 has taken to plan for example.

          • Tiercelet

            I’d be a little leery of applying the Agile-methodology analogy too eagerly here. As I understand it, one of the cornerstones of Agile is to iteratively build out working examples for directly informed customer feedback: giving people the chance to try things and see if it meets their requirements, refactoring if needed.

            I see a few big issues with this as applied to transit:

            – Obviously the refactoring process is significantly more constrained for, e.g., a railway tunnel.
            – Agile is all about everyone coming to understand the requirements better through iteration. If customers can’t see the iterations, their input is significantly less valuable as guidance, since it’s still speculation about what they want rather than informed from experience.
            – Agile assumes that the stakeholders are invested in the project. But if you try to apply Agile to NIMBYs, that doesn’t quite hold: many of the participants would prefer that the project not happen at all.
            – Agile also assumes that the stakeholders are well-defined and consistent. But in this instance, there’s a tendency for the constituencies involved to change based on who’s affected.

            I’m imagining a failure mode where you Agilely make a plan to route the tracks through neighborhood X; community feedback says put it through Y, so you do that for the next iteration of the plan, and then the residents of Y show up and say no it should go through Z; then the next iteration says no put it through X… Since there’s never an actual product to interact with, there’s no interaction to make people change their minds, and you’re really right back in the existing processes.

          • Matthew Hutton

            Tiercelet some good points, but I think a lot of the NIMBY’s are pretty soft.

            You therefore should easily be able to win them round as a transit project is likely to increase their property values.

          • adirondacker12800

            They screech “Queensifcation!!!” and fight it tooth and nail.

          • Matthew Hutton

            I think that’s an extreme minority. Not the consensus position of the older homeowners as a group.

            And I suspect it’s not the consensus position of the local notables – all of whom to some degree want change and who generally operate on a consensus model – at least in the UK.

          • adirondacker12800

            I doubt anyone screeches “Queensification” in the U.K. And if they did it would be very confusing.

  8. Alex B.

    “Protection of National Parks is a bureaucratic process: the National Park Service can impose regulations on the construction of infrastructure, and during the planning for the Washington Metro it demanded that the Red Line cross Rock Creek in tunnel rather than above ground to limit visual impact.”

    I did want to address this, because it’s true that this was handled without the courts, but that doesn’t make it bureaucratic. It’s not that the NPS imposed regulations on WMATA, but it was more purely a matter of property rights. The issues were negotiated between the parties as owners of property.

    WMATA wanted to have a transfer station at Farragut Square; NPS vetoed that idea because it would’ve required substantial impacts to their property (the park itself). Same with Rock Creek – the power NPS had was because of the impact to their property.

    During that process, Congress passed section 4(f) of the DOT act which substantially protected parklands and gave NPS a much stronger hand in negotiations.

    The reason why you see lawsuits for something like ADA compliance in New York, but not for others, is because of the different nature of the facts involved. There’s no need for lawsuits about ADA compliance for new construction, because the law and standards are pretty clear (and administered bureaucratically). Same for 4(f) protection of parkland. Where the law is inherently less clear is in the broad mandate of the ADA (conferring a right for the disabled to not be discriminated against) with the pragmatic reality of the built environment. That conflict is so large that it’s almost demanding of judicial interpretation to settle cases emerging from it.

    • Alon Levy

      The problem is that as soon as pragmatic reality matters, questions of fact start to matter – and those should never be adjudicated by the courts. As we’re seeing right now, the courts are buying the MTA’s “we can’t” excuses and giving them until 2055 to get to a level of accessibility that Berlin is going to have in 2024 – because they are not experts on infrastructure or public transport and they can’t even tell that MTA Capital Construction are not expert either.

      • Matthew Hutton

        There’s also the risk that the bureaucrats just back each other up. That’s what happens here with the independent police complaints authority for example.

        • Alon Levy

          There’s a bureaucratic office for that as well: the ombudsman. (And note that American adversarial legalism has done nothing to deter police brutality or criminal justice racism; the people targeted are not the types who’d know to get a lawyer, whereas people with money to pay for a lawyer can beat just about any charge.)

          • Matthew Hutton

            Ok well that’s fair. I mean the British police are pretty good comparatively.

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