Top Regulatory Essays of 2017

The Regulatory Review is pleased to highlight our top regulatory essays of 2017 authored by outside contributors. These essays, which qualify for this list based on the number of page views, are arranged below in alphabetical order by last name of author.

Paralysis by Analysis Is Not Regulatory Reform

June 20, 2017  | Robert S. Adler

One of my fellow Commissioners on the U.S. Consumer Product Safety Commission, Joseph Mohorovic, recently published an essay on The Regulatory Review that I consider to be thoughtful, creative—and wrong. I have no disagreement with Commissioner Mohorovic’s proposition that improving agency functioning is a good thing. But his approach prescribes an all-too-familiar nostrum for regulatory reform: impose “paralysis by analysis” by regulating the regulators.

Enormous Benefits at Minimal Cost

June 22, 2017  | Robert S. Adler

I have truly enjoyed sharing different perspectives on regulation with my U.S. Consumer Product Safety Commission (CPSC) colleague, Commissioner Joe Mohorovic. For what it is worth, I share his concern about not promulgating rules where the benefits fail to match the costs. That said, I do not share my colleague’s sense that the regulatory state has run amok, particularly at the CPSC.

The Discount Rate for the Social Cost of Carbon

January 18, 2017  | Jonathan Baron

When we perform cost-benefit analysis of regulations, and when the benefits of those regulations accrue in the future, we discount our estimates of the benefits so that we can quantify what should be spent today in order to avoid future damage. What is the correct discount rate? I cannot answer that, but I can comment on the implications of some proposed reasons for discounting that are suggested by the large literature on this question in economics and philosophy.

Justifying Health Insurance

February 23, 2017  | Jonathan Baron

Recent discussions about revising or replacing the Affordable Care Act raise philosophical questions about the rationale for having a health insurance system. Among these philosophical questions are the extent to which such insurance should be compulsory, and, relatedly, the extent to which the cost of compulsory insurance should depend on risk and ability to pay. As lawmakers debate health policy, it is helpful to review the economic and moral justifications for health insurance.

The Future of Police Reform Under the Trump Administration

February 13, 2017  | Kami N. Chavis

Over the last few years, a spate of high-profile deaths at the hands of police officers, and concomitant claims of racial profiling, have prompted calls for widespread reform of local law enforcement agencies. By 2016, the country seemed poised to experience a “criminal justice revolution,” as many municipal police departments and local officials promised reforms. A review of past DOJ-initiated reform efforts can offer some clarity by providing a window into how a “criminal justice revolution” can indeed continue to move forward in the years ahead.

On the Pitfalls of Performance Standards

November 20, 2017  | Cary Coglianese

Performance standards have long been heralded as a superior approach to regulating business activity. Due to their flexibility and cost-effectiveness, performance standards have been advocated widely throughout the global community. And yet their supposed superiority remains largely theoretical, even conjectural. We know surprisingly little about how performance standards work in practice.

Adjudicating by Algorithm, Regulating by Robot

May 22, 2017 | Cary Coglianese and David Lehr

Sophisticated computational techniques, known as machine-learning algorithms, increasingly underpin advances in business practices. Machine learning—the foundation of artificial intelligence—portends vast changes to the private sector. But job displacement by machine learning will not be limited to the private sector. Governments may soon undergo their own data revolution and find ways to use machine learning to support smarter public sector decision-making by administrative agencies—potentially even replacing certain human decisions.

Designing Safety Regulations for High-Hazard Industries

October 4, 2017  | Cary Coglianese and Thomas R. Menzies

Governments have long regulated the safety of industries engaged in hazardous activities. To make smart decisions, regulators need a clear conceptual framework about their design options and about the conditions under which different designs will work best. Such a framework can be found in a new report issued under the auspices of the National Academies of Sciences, Engineering, and Medicine.

Why Cabinet Secretaries Should Not Threaten Members of Congress

August 14, 2017  | Cary Coglianese, Gabriel Scheffler, and Daniel E. Walters

Among the many twists and turns in this summer’s legislative drama involving Republicans’ efforts to repeal and replace the Affordable Care Act, one sideshow revealed an important lesson about the appropriate relationship between executive branch officials and members of Congress. In the days leading up to the Senate’s late-night crescendo, U.S. Secretary of the Interior Ryan Zinke apparently made phone calls to Alaska’s two Senators threatening adverse departmental actions toward their state if Murkowski did not get behind the health care repeal effort.

An Empirical Analysis of the Establishment of Independent Agencies

July 13, 2017  | Patrick M. Corrigan and Richard L. Revesz

In our recent article, The Genesis of Independent Agencies, we ask a core question of administrative law: When are agencies established with features that insulate them from direct presidential control? Only a single political science study provides empirical evidence for the claim that divided government has an impact on the establishment of independent agencies. We revisit the divided government hypothesis using a new dataset that we constructed containing the agencies currently in existence that possess rulemaking, adjudicatory, and enforcement authority—the features that are the focus of modern administrative law.

Building for Disaster

October 16, 2017  | Jeffrey Czajkowski, Kevin Simmons, and James Done

In today’s political climate, public mood appears receptive to rolling back various regulations. It is important to consider the costs and benefits of the regulation at stake, that is, to compare the benefits of the regulation against the cost it imposes. The recent catastrophic events of Hurricanes Harvey, Irma, Maria, and Nate bring to the forefront the regulatory debate over building codes. Strong and well-enforced building codes increase the costs of property construction, but they also have the potential to reduce future property damage from hurricanes in vulnerable areas.

Solar Panels on a Border Wall

July 11, 2017  | Nives Dolšak and Aseem Prakash

President Donald Trump has floated the idea of installing solar panels on the proposed wall on the Mexican border. After introducing the idea in early June in a meeting with congressional leaders, President Trump repeated it at a recent rally in Iowa: A “solar wall” could, he said, “create energy and pay for itself…Pretty good imagination, right? In assessing the policy merits of his proposal, three crucial issues should be examined.

Why a Retreat from Paris Now?

June 20, 2017  | Nives Dolšak and Aseem Prakash

President Donald Trump announced the United States’ withdrawal from the Paris Climate Agreement on the 132nd day of his presidency. Was this an impulsive reaction, or is there a logic to his action? The President’s action may have a perfectly rational explanation. The Paris treaty can be conceptualized as an international regime, intended to influence domestic policies and behaviors. Countries participating in such regimes are typically obligated to translate their regime commitments into domestic regulations and policies.

It Takes “Alternative Math” to Claim That Redistribution Is Futile

March 16, 2017  | Adam M. Finkel

The unequal distribution of costs and benefits across society is one of the hottest topics in the regulatory arena—and one that, regretfully, has sparked fundamentally flawed arguments, threatening to distort and obscure much-needed discussion about redistributive policies. To the extent that a regulation correcting an externality or other market failure provides total benefit in excess of total cost while particularly helping the disadvantaged subsets of society, the regulation should be seen as doubly wise. If, instead, the regulation creates positive net benefit but requires the poor to pay the costs so that the rich can reap health or environmental benefits, it may be neither just nor wise.

Supreme Court Raises the Bar for Students with Disabilities

August 1, 2017  | Lori Fox

The Individuals with Disabilities Education Act (IDEA) transformed the lives of children with disabilities. Before IDEA’s passage in 1975, children with special needs were often neglected and sometimes abused by schools. The IDEA required schools to provide better opportunities, but debate continued about how much they had to do to assist children with profound disabilities. The U.S. Supreme Court’s recent decision in Endrew F. v. Douglas County School District, raised the standard for school systems.

Requiring Formal Rulemaking Is a Thinly Veiled Attempt to Halt Regulation

May 18, 2017  | William Funk

Professor Kent Barnett recently opined in The Regulatory Review that formal rulemaking really is not that bad and may actually be a good thing in certain circumstances. His argument deserves closer review. Barnett may well be right to suggest that in some situations the costs of formal rulemaking could be justified, but he could not be more wrong to argue that the circumstances that would trigger formal rulemaking under the Regulatory Accountability Act are among those situations.

Potential Legislative Developments in the Regulatory State in 2017

January 23, 2017  | Dan Goldbeck

Now that the Republican-controlled 115th Congress has convened and President Donald Trump has taken the oath of office to form the first party-unified government since 2010, there likely will be an abundance of legislative activity across a variety of policy areas. Indeed, there is a broadly shared consensus across the party on the need to consolidate regulations and restrain the administrative state. That being said, political will and the basic mechanics of governing could limit the total amount and pace of these prospective reforms.

Trump’s Alternative Economics of Climate Change

April 24, 2017  | Denise Grab

President Donald Trump signed an executive order last month calling for the elimination of health and safety rules related to domestic energy production. The order starts a long—and legally risky—process of dismantling President Barack Obama’s executive actions to address climate change. President Trump’s executive order throws out an estimate of the social cost of carbon that the federal government has carefully developed over many years, replacing it with an agency-by-agency approach.

Constructively Improving Railroad Regulations

July 10, 2017  | Edward R. Hamberger

The success of partial economic deregulation of the freight rail sector is well established in policy circles across the political spectrum and is marked by an undeniable correlation between less government intrusion and the ability of the industry to invest private dollars to serve customers and the economy. As a result, the industry is increasingly vocal in calling for a shift to safety regulation that holds the industry accountable for its safety performance, while, at the same time, enabling and encouraging it to develop safer and more efficient practices.

The Unhealthy Return to Individual Responsibility in Health Policy

January 16, 2017  | Allison K. Hoffman

It is still an open question—at least for a little while longer—what exactly the Republicans’ Affordable Care Act “repeal and replace” promise will entail. However, the broad contours of the Republican strategy, which both Congress and President Trump have made clear they will pursue at all deliberate speed, are already visible. Speaker of the House Paul Ryan (R-Wis.) emphasized that personal responsibility will serve as a salve to the wounds of the American healthcare system. These ideas are naïve.

How FDA Should Use Its Authority to Regulate Human Cells

October 30, 2017  | Andrew Ittleman

In 2012, an op-ed in The Wall Street Journal, “The FDA Wants to Regulate Your Cells,” criticized a recent federal trial court decision in which a judge endorsed the U.S. Food and Drug Administration’s (FDA) sweeping efforts to regulate human cells as drugs. The author of that op-ed, Scott Gottlieb, is now the Commissioner of FDA, and his op-ed might provide us with some clues as to what FDA’s new “comprehensive” regulatory framework might look like.

Repeal of Mandatory Arbitration Ban Is a Wall Street Giveaway

November 1, 2017  | Aaron Jordan

This July, the Consumer Financial Protection Bureau (CFPB) issued a final rule banning financial institutions from preventing customers from joining class action lawsuits. Congress narrowly passed a resolution of disapproval under the Congressional Review Act, nullifying the CFPB’s action. Although the Trump team and Wall Street lawyers succeeded in their efforts to persuade Congress to vote to erase the rule, the simple reality is that repeal of the CFPB rule was done for large financial institutions and will be to the detriment of ordinary consumers.

The CFPB’s Final Arbitration Rule Run Amok

September 11, 2017  | Alan S. Kaplinsky and Mark J. Levin

The Consumer Financial Protection Bureau (CFPB) issued a final rule this summer that will prohibit financial services companies from including pre-dispute arbitration agreements with class action waivers in their consumer account contracts. In the Dodd-Frank Wall Street Reform and Consumer Protection Act, Congress authorized the CFPB, if necessary, to issue regulations restricting or prohibiting their use. However, Dodd-Frank imposed three express limits on the CFPB’s rule-making authority. Unfortunately, the recently issued final arbitration rule vaults over those statutory requirements and benefits only class action lawyers.

Getting Back to the Basics with Agency Rulemaking

November 13, 2017  | Kathryn E. Kovacs

We need to get back to the basics. The U.S. government is changing right before our eyes. Among other things, President Donald J. Trump is bypassing the statutory requirements for agency rulemaking. We must act to preserve the system that has served the nation so well thus far. We must do more to hold federal agencies to the requirements of the Administrative Procedure Act, while also taking care not to overburden these agencies.

The Regulatory Accountability Act and the Obsolescence of Formal Rulemaking

August 21, 2017  | Ronald M. Levin

Recently, The Regulatory Review has featured a debate over the contemporary relevance of trial-type or formal rulemaking. The purpose of this essay is to highlight that the proponents of reviving trial-type procedure in rulemaking have simply not reckoned with the implications of the fact that this technique has been considered obsolete for decades, following the U.S. Supreme Court’s narrow construction of the applicable Administrative Procedure Act language in 1973.

Autonomous Vehicle Bill Leaves Safety Gaps

September 25, 2017  | Sarah E. Light

The U.S. House of Representatives recently passed a bill called the Self-Drive Act. And less than one week later, the National Highway Traffic Safety Administration (NHTSA) adopted an updated policy guidance on autonomous vehicles (AV) safety. Although the House bill understandably seeks to promote innovation in the development of AVs, the bill would upset the balance of regulatory authority between the federal government and the states, leaving serious gaps in legal protection of public safety in the near term.

Measuring the Obama Administration’s Historic Midnight Surge

February 6, 2017  | Sofie E. Miller and Daniel R. Pérez

In anticipation of the final months of President Obama’s Administration, many predicted an upswing in “midnight” regulations. These are rules that are finalized during the three months between Election Day and Inauguration Day, as the outgoing President attempts to cement his regulatory legacy. In a series of essays on The Regulatory Review, we used quantitative models to make similar predictions, drawing on historical data. Now that the data are in, we find that our forecasts were remarkably accurate: President Obama left office with a bang, issuing 41 economically significant rules between November 1, 2016 and January 19, 2017.

Improving the Process of Making Rules at Independent Agencies

January 9, 2017  | Joseph P. Mohorovic

As a Commissioner of the U.S. Consumer Product Safety Commission (CPSC), I have found that we could greatly improve the Agency’s functioning by adopting several rulemaking procedures. Some of these procedures, like the publication of a regulatory agenda, are time-honored principles espoused by a long line of executive orders, while others, such as pay-go requirements that force agencies to consider the collective economic costs of their rules, are emerging practices used in other countries. Four key procedural steps could greatly improve rulemaking at CPSC and other independent agencies.

The Administrative State Has Run Amok

June 21, 2017  | Joseph P. Mohorovic

Recently, this publication was gracious enough to publish a two-part essay I wrote on the issue of regulatory reform from the perspective of a Commissioner at the U.S. Consumer Product Safety Commission. My ever-attentive, ever-thoughtful colleague, Commissioner Robert S. Adler, was inspired to pen a retort, and, in the spirit of the stimulating intellectual exchange we regularly enjoy, I would like to offer a reply.

The Stunning Triumph of Cost-Cost Analysis

February 19, 2017  | Amit Narang

The reactions to President Donald Trump’s new executive order (EO), “Reducing Regulations and Controlling Regulatory Costs,” reflect the broader debate over regulation. What all sides can agree on is that the EO imposes a regulatory budget on the existing rulemaking process that is unprecedented and untested. Yet, there is one very significant feature of the EO that has not received the attention it should. Namely, the EO spells the end of cost-benefit analysis and the rise of a new form of analysis that focuses only on regulatory costs while ignoring benefits.

The Need for a Trauma-Informed Approach to Female Incarceration

February 28, 2017  | Vivian Nixon

More than one million women are currently under the supervision of the criminal justice system in the United States. Although men make up the majority of the prison population, rates of women’s incarceration have now outpaced male incarceration at an astonishing pace of two to one since 1980. This drastic increase of more than 700 percent firmly secures women’s place as the fastest growing prison population and highlights the urgent need for a gender-responsive, trauma-informed approach to female incarceration in the United States.

The Future of Occupational Licensing Reform

January 30, 2017  | Ryan Nunn

Occupational licensing is not new, and neither is interest in its study and reform. However, licensing has massively expanded in recent decades: roughly 5 percent of workers were licensed in the 1950s, compared to about one quarter of workers today. This increase in licensing is for the most part not a consequence of the swelling service sector, replete with licensed physicians, lawyers, and teachers. Rather, the bulk of growth in licensing has resulted from the extension of licensing to previously unlicensed occupations. There are a few reasons to view this trend with dismay.

Will the Trump Administration Drastically Deregulate Environmental Protection?

February 22, 2017  | Craig N. Oren

What regulatory shifts in environmental law can we expect from the Trump Administration? Answer: It’s hard to know. Everyone knows that the signs to date point toward deregulation. The consequence may be a retreat from many of the initiatives of the Obama Administration. But we must remember 1981, when the Reagan Administration came into power.

A Good Effort, with One Glaring Flaw

May 8, 2017  | Richard J. Pierce, Jr.

Senators Rob Portman (R-Ohio) and Heidi Heitkamp (D-N.D.) recently introduced the first bipartisan regulatory reform bill, the Regulatory Accountability Act of 2017. The bill contains one glaring error. Section 3(e) of the bill requires an agency to conduct an oral evidentiary hearing, including cross-examination, with respect to “genuinely disputed” “specific scientific, technical, economic, or other complex factual issues” in any rulemaking expected to have an annual effect on the economy of $100 million or more.

The Secretary of Energy’s Tariff Proposal Would Be Disastrous

October 26, 2017  | Richard J. Pierce, Jr.

The Federal Energy Regulatory Commission (FERC) is considering adopting a proposal that would reverse 40 years of significant progress in regulating energy markets. FERC’s proposal responds to U.S. Secretary of Energy Rick Perry’s call for a major revision of non-discriminatory open access tariffs that have guaranteed that each wholesale purchaser of electricity is charged a comparable price for a comparable amount of electricity.

Partisans or Peacocks?

May 3, 2017  | Alexander Prakash

“I’m sorry for taking up so much time,” said Justice Neil Gorsuch, apologizing for his enthusiasm during his first appearance in a U.S. Supreme Court oral argument after being sworn in as the high court’s newest justice. During the hour-long hearing, Justice Gorsuch asked 22 questions. What motivates some justices to speak a lot while their colleagues remain relatively silent? I suggest that one theory is that justices are, to different degrees, veritable “peacocks,” seeking publicity.

The First Amendment Protects Offensive Trademarks

July 25, 2017  | Lisa P. Ramsey

In Matal v. Tam, the U.S. Supreme Court held that the disparagement clause of the federal trademark law, known as the Lanham Act, violates the Free Speech Clause of the First Amendment because the government may not regulate speech “on the ground that it expresses ideas that offend.” Tam arose out of the U.S. Patent and Trademark Office’s rejection of Simon Tam’s application to register “The Slants” as a mark for the entertainment services of his rock band.

Structural Reforms to Improve Cost-Benefit Analyses of Financial Regulation

August 7, 2017  | Richard L. Revesz

In recent years, financial service regulations have fared poorly in the courts as a result of the low quality of the cost-benefit analyses that regulatory agencies have prepared to support their rules. The scholarly debate that has resulted from the string of court losses suffered by these agencies has focused on whether the benefits of financial regulation are monetizable. But this debate misses an important part of the problem posed by repeated judicial disapproval: institutional shortcomings stand in the way of the high-quality analyses needed to pass judicial muster.

The Misguided Regulatory Accountability Act

March 29, 2017  | Martha Roberts

Many of the features of the Regulatory Accountability Act render it a disastrous piece of legislation for public health, safety, and the environment. The legislation would covertly undermine longstanding protections for child safety, food safety, auto safety, and other broadly shared values. But the key problem is not just that the Regulatory Accountability Act would impose needlessly convoluted, burdensome requirements on federal agencies: it is that it would impose needlessly convoluted, burdensome requirements that we know have failed in the past.

The Troubling Issues Regarding Police Use of Force

February 27, 2017  | David Rudovsky

As a result of recent high-profile shootings of unarmed African-American civilians by police, the long simmering problem of excessive police force in the United States has sparked a national debate on policing, race, and community relations. Data collection is still inexcusably deficient in many police agencies, but the data that are available demonstrate patterns of excessive force, as well as large racial disparities in the use of force.

The Value of Public Participation in Rulemaking

September 25, 2017  | Eugene Scalia

I have had the opportunity to serve in the federal government three times, twice as a lawyer. But I would like to discuss here the role that outsiders play in our system of administrative law—companies, unions, environmental groups, and others, including lawyers. Because administrative law is in part about participatory government. And especially as the administrative state expands and Congress punts more—and more difficult—policy questions to agencies, it is often by appearing before those agencies that the public has its most valuable opportunity to participate in the development of the law.

Cost-Benefit Analysis and Reasoned Agency Decision-Making

September 26, 2017  | Eugene Scalia

When I looked at the record compiled by the agency in the first rulemaking by the U.S. Securities and Exchange Commission (SEC) I was involved in, I was struck by the almost complete absence of economic analysis. As an employment lawyer I had seen cost-benefit analyses; I was familiar with the lively debate over the role of cost-benefit analysis in environmental regulation. The SEC was regulating the financial markets—direct economic regulation. I therefore expected the Commission to be particularly attentive to economic impacts. Far from it.

Will Congressional Review Act Repeals Change Agency Behavior?

April 3, 2017  | Stuart Shapiro

Up until just a few months ago, the Congressional Review Act (CRA) was an obscure statute that had been used by Congress exactly one time in its 20-year history. In the opening months of the Trump Administration, it has already been used to repeal seven Obama Administration regulations—and the total number of rules repealed under the CRA will almost certainly climb higher. Although other issues have dominated the headlines, these regulatory repeals arguably constitute the Trump Administration’s chief domestic policy accomplishment of its first 100 days.

Voter Data Request Is Illegal, Not Just Controversial

July 5, 2017  | Stuart Shapiro

Recently, the newly created Presidential Advisory Commission on Election Integrity sent a letter to all fifty states asking them to submit extensive information about registered voters. The letter has created an uproar among state officials, and many have announced their intention to refuse the request. President Donald Trump has tweeted his disapproval of these state refusals. Because the Commission on Election Integrity appears to have ignored the requirements of the Paperwork Reduction Act, its request is simply illegal.

How the Clean Power Plan’s Repeal Undermines Regulatory Analysis

October 17, 2017  | Stuart Shapiro

EPA originally issued the Clean Power Plan in 2015 only after preparing a regulatory impact analysis which included estimates of the social costs and benefits of the plan. The agency’s analysis estimated that the Clean Power Plan would deliver net social benefits in the tens of billions of dollars. The Trump Administration, in announcing its proposed repeal of the Clean Power Plan, produced an impact analysis arguing that repealing the Clean Power Plan could deliver positive net benefits. Why the difference?

Donald Trump’s Unconstitutional Executive Order on Regulations

May 17, 2017  | Scott Slesinger and Robert Weissman

Soon after taking office, President Donald Trump issued an unconstitutional executive order requiring administrative agencies to repeal at least two regulations for each new regulation they create. The Natural Resources Defense Council, Public Citizen, and the Communications Workers of America, working with Earthjustice, have sued to block this illegal action. This executive order has provoked less of a public outcry than many of President Trump’s others, but it may be the most far-reaching and damaging of any he has issued.

Encourage Vaping to Help Reduce Smoking

March 13, 2017  | Stephen D. Sugarman

In light of the undeniable risks posed by smoking, a large majority of regular smokers say they would like to quit. Given the widespread but often unsuccessful efforts to quit smoking, one might think that U.S. health officials would welcome a new and far less dangerous substitute behavior: vaping. Unfortunately, regulators so far mistakenly have treated vaping akin to smoking, rather than embracing vaping’s smoking-cessation potential.

Restricting Race-Conscious Redistricting

July 31, 2017  | Daniel Tokaji

After a long hiatus, racial gerrymandering is back in the spotlight. The U.S. Supreme Court has issued three major decisions on the subject since 2015. The two opinions issued this past term, Bethune-Hill v. Virginia State Board of Elections and Cooper v. Harris, clarify the limits on states’ consideration of race when drawing districts. Taken together, they substantially limit Republican elected officials’ ability to use the Voting Rights Act as a pretext for partisan gerrymandering. They also make it harder to justify the intentional creation of districts with a predetermined percentage of racial minorities.

The Regulatory Accountability Act Is a Model of Bipartisan Reform

May 18, 2017  | Christopher Walker

Last month, U.S. Senators Rob Portman (R-Ohio) and Heidi Heitkamp (D-N.D.), joined by Senators Orrin Hatch (R-Utah) and Joe Manchin (D-W.Va.), introduced the Regulatory Accountability Act of 2017. If enacted, this bipartisan legislation would constitute the most significant regulatory reform since the Administrative Procedure Act (APA) was enacted in 1946. Like the APA itself, the Regulatory Accountability Act is the product of bipartisan compromise. Indeed, this legislation is what bipartisan regulatory reform should look like.

The Covered Agreement Between the United States and European Union

June 6, 2017  | David Zaring

One of the last accomplishments of the Obama Administration was the conclusion of an agreement with the European Union on how to treat insurance and reinsurance companies doing business with both the United States and the European Union. The Obama Administration finished this deal one week before the inauguration of President Donald Trump. The agreement’s principles-based approach makes it a streamlined and workable solution for coordinating the regulation of multinational insurance companies.