McNollgast

McNollgast earned undergraduate degrees from Caltech, UC Irvine, and UC Santa Cruz, and ph.d.s from Caltech and Harvard.  McNollgast has held professorial appointments at Caltech, Duke, Stanford, Texas, UC San Diego, USC, and Washington University, St. Louis, as well as Senior Fellow appointments at Brookings and Hoover. McNollgast has written extensively on issues in public law, focusing on statutory interpretation and administrative law. 

McNollgast is most well-known for its early articles that helped introduce positive political theory (PPT) into the study of administrative law:

• “Administrative Procedures as Instruments of Political Control,” Journal of Law, Economics, and Organization (Fall 1987) 3: 243-77.
• “Structure and Process, Politics and Policy:  Administrative Arrangements and the Political Control of Agencies,” Virginia Law Review (March 1989) 75 : 431-82.

These articles demonstrate the powerful political forces underlying administrative procedures. The 1987 article emphasizes procedures that were derived from the 1946 Administrative Procedure Act; the 1989 article focuses on procedures contained in legislation that an agency administers.

McNollgast has also written two major articles on statutory interpretation*:

• “Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation,” Law and Contemporary Problems (1994) 57: 3-37.
• “Positive Canons: The Role of Legislative Bargains in Statutory Interpretation,” Georgetown Law Review (1992) 80: 705-42.

McNollgast also has contributed to the development of a positive theory of decisions by the courts, including the circumstances in which legal precedents emerge and then become unstable.

For McNollgast’s recent survey of the exploding field of PPT and the law, see:

• “The Political-Economy of Law,” in A. Mitchell Polinsky and Stephen Shavel, eds., Law and Economics Handbook vol 2 (North Holland, 2008).

Other McNollgast papers:

• “Positive and Normative Models of Due Process: An Integrative Approach to Administrative Procedures,” Journal of Law, Economics, and Organization (1990) 6: 307-32.
• “Politics and the Courts: A Positive Theory of Judicial Doctrine and the Rule of Law,” Southern California Law Journal (September 1995) 68: 1631-83.
• “The Political Origins of the Administrative Procedure Act,” Journal of Law, Economics, and Organization (April 1999) 15: 180-217.
• “Political Control of the Bureaucracy,” in The New Palgrave Dictionary of Economics and the Law. (London: Palgrave, 1999).
• “Conditions for Judicial Independence” Journal of Contemporary Legal Issues (2006) 15(1): 105-27.

An unpublished McNollgast paper (with Linda R. Cohen) that I wished we’d revised and published. It studies the political confrontation of the environmentalists with the proponents of nuclear power, ultimately resulting in the latter’s downfall:

• “Structural Change in Congress: The Demise of the Joint Committee on Atomic Energy” (with Linda R. Cohen), Working Paper, Hoover Institution, Stanford University, 1991. Download the paper.

Comments:

• “Slack, Public Interest, and Structure-Induced Policy,” Journal of Law, Economics, and Organization (1990) 6: 203-212.
• “The Theory of Interpretive Canons and Legislative Behavior: A Comment on Rodriguez,” International Review of Law and Economics (1992) 12: 235-38.
• “Administrative Law Agonistes” (McNollgast and Daniel B. Rodriguez), Columbia Law Review Sidebar (April 21, 2008) 108: 15-22. http://www.clrsidebar.org/replies/McNollgast_Rodriguez_Administrative

* See also:

• Rodriguez, Daniel B., and Barry R. Weingast. 2003. “The Positive Political Theory of Legislative History: New Perspectives on the 1964 Civil Rights Act and its Interpretation.” University of Pennsylvania Law Review (April, 2003) 151(4): 1417-1542.

Rodriguez and Weingast extend the McNollgast approach to statutory interpretation to include a theory of “legislative rhetoric.” They apply this approach to the 1964 Civil Rights Act, which yields fresh insights into the Act and its torturous route to passage.