Hearty congratulations to Peter Lindseth whose 142 page, co-authored book entitled "Oversight" and written as part of the series Administrative Law of the European Union was published near the end of last summer by ABA publishing. Peter's collaborators are Fred Aman, dean of Suffolk Law School and honorary husky, and Alan Raul, a D.C. partner at Sidley and Austin. It is a tribute to our colleague that he has persuaded two such distinguished authors to adopt the perspective on the topic that he has developed so passionately in earlier works - see e.g. Peter Lindseth, Agents without Principals? Delegation in an Age of Diffuse and Fragmented Governance in Reframing Self-Regulation in European Private Law (Fabrizio Cafaggi ed., Kluwer Law Int’l, 2006); Peter Lindseth, Delegation is Dead, Long Live Delegation: Managing the Democratic Disconnect in the European Market-Polity, in Good Governance in Europe’s Integrated Market (Christian Joerges & Renaud Dehouse eds., Oxford Univ. Press 2002) and Peter Lindseth, Democratic Legitimacy and the Administrative Character of Supranationalism: The Example of the European Community, 99 Colum. L. Rev. 628 (1999). The book’s conclusion makes clear that Peter’s is the driving voice.
Let’s start by placing the project in context. The series editors, George Bermann, Charles Koch, and James O’Reilly have correctly concluded that the governing structure and multiple overlapping institutions of the European Union are impossible to capture in one short volume. Rather than dividing up the task of describing legal Europe into discrete units – let’s say one on the European Council, another on the European Commission etc. - they have chosen instead to commission volumes that tackle the many different institutions through the lens of a single theme. Thus, within the series there are volumes on rulemaking, judicial review, transparency, etc.
Peter’s volume focuses on the idea of “oversight”, which the authors readily admit has no ready translation into the European context. As the book makes clear from beginning to end, the term “oversight” is meant to capture the idea of review of one institution’s decisions by another institution, where the reviewing body has a leg up on the reviewed (perhaps greater legitimacy) but not actual control over the reviewed institution. For example, a faculty might choose to create a committee that exercised “oversight” over a dean’s choice of administrative staff (heaven forbid) whereas a faculty might exercise “control” preventing a dean from hiring a tenure-track faculty member over faculty objection (wouldn’t dream of such a thing). The authors struggle all the way through to remain consistent about the idea that “oversight” is not “control” but more like guiding or influence. Perhaps, something like “sideways sight” or even “checks and balances” would be closer to what they mean.
In any event, the lens of oversight provides the authors a tool to tour the reader through an astonishingly thorough and erudite survey of countless European institutions from the familiar ones, such as those mentioned above, all the way through watchdog entities such as the European Anti-Fraud Office and the European Court of Auditors.
Much of the material is descriptive, although quite richly so. But two things stand out. First, the authors (and I’m guessing Peter gets both credit and blame) rightly sense that readers can’t get a full sense of the complex structure without a feel for the history of how it came to pass. So, many of the descriptions include historical discussion that both illuminate yet also deeply complicate these descriptions. Second, the blizzard of rich detail is held together because the story of each institution is told only so far as necessary for the reader to grasp where it fits into the idea of oversight within Europe’s framework. Imagine, for example, that the New England states got together to create a committee whose purpose it was to watch Congress to ensure that Congress passed no legislation hostile to New England’s concerns. Such an idea sounds nuts to us, yet things of this kind apparently abound in Europe and each such committee could be said to have an “oversight” function. [As an aside, I might note that if you are feeling blue about the economy and America’s ability to compete, reading this volume will buoy your spirits. As Peter et al., show, Europe’s structure as it now stands compares unfavorably with a Rube Goldberg contraption.] What the volume does so well is show how year after year, Europe keeps experimenting by increasing in some places and decreasing in others the amount of “oversight” to which its various institutions find themselves subject.
What makes this volume more than just a good treatise, however, is that in Peter’s capable hands the relentless change Europe has experienced and continues to experience is presented as more than just the normal ebb and flow in the battle for power. Rather, Peter et al. portray Europe’s institutional history as the product of a deep-seated anomaly in its underlying organization. This riddle in Europe’s core, it will surprise none of Peter’s fans to learn, is that Europe’s supra-national institutions lack the democratic legitimacy of the nation state. Accordingly, since a different sort of legitimacy is needed for decisions of Europe, the demand for institutions of “oversight” is particularly strong. And the book presents the many institutions as responding precisely to the problems Peter sees – in other words the “oversight” institutions are presented as the kind Europe would invent if it imagined its supra-national institutions as having received delegated authority from nation states rather than democratic legitimacy from voters. This sort of thematic presentation in the course of what is essentially a treatise full of important detail for the reader seeking to get acquainted with “Europe” is a scholarly achievement worthy of admiration. I would have liked it still more if the authors had taken one simple example of European legal action and run it all the way through the various institutions discussed.
Of course, it would be highly unfair to impose upon a treatise the obligation to answer the sort of questions one would tackle in a more normative monograph. As I reached the end, however, I found myself wondering what accounts for Peter’s immense faith in the democratic legitimacy of the nation state. That’s a topic for another day but consider just one flip on the book’s argument. Maybe neither the administrative state nor the supra-national institutions of Europe are as anti-democratic as the classic Ted Lowi argument makes them out to be. The conventional story is that the President and Congress are elected and thus accountable whereas an administrative agency is not. As I’m sure Peter would be the first to agree, however, being elected isn’t the same as being accountable. Leaving aside complex questions such as those raised by Kenneth Arrow, ask yourself whether you are really able to hold your congressional representative accountable on individual issues. John Larson could vote against an environmental bill, yet environmentalists in his district would have no recourse at the polls. Creating a specialized agency such as EPA might actually create officials more subject to popular will than congresspersons.
More broadly, unless we govern by plebiscite, a real issue arises as to whether the sort of lobbying pressure placed on agencies is actually more effective than political pressure brought to bear on Congress. Whether this analogy has any relevance at all to the supra-national institutions of Europe is a topic I invite Peter to explore. Above all, I’m so glad that in a few short months he’ll be doing his legal exploring back here on campus.
Congratulations again Peter. We all look forward to your return.