Top Contributor Essays of 2020

The Regulatory Review is pleased to highlight our top regulatory essays of 2020 authored by a select number of our many expert contributors. These opinion pieces, which qualify for this list based on the number of page views during the past 12 months, are arranged below in alphabetical order by last name of author.

OECD Evaluation of EU Regulatory Policies

January 20, 2020 | Christiane Arndt-Bascle, Paul Davidson, Benjamin Gerloff, and Rebecca Schultz, Organization for Economic Co-operation and Development

The Organization for Economic Co-operation and Development has assessed all European Union countries’ use of stakeholder engagement, regulatory impact assessment, and ex post evaluation to improve the quality of laws and regulations, drawing on its composite indicators of regulatory policy and governance.

Revisiting the Constitutionality of Independent Agencies

July 21, 2020 |Bernard W. Bell, Rutgers Law School

When can Congress protect agency heads from at-will removal by, or at the behest of, the President? The majority’s rule in Seila, although absolute in its way, leaves questions unanswered.

India’s Executive Response to COVID-19

May 4, 2020 | Gautam Bhatia, University of Oxford

The regulation of pandemic response measures has emerged as a web of intersecting administrative orders at the central and state level. India’s deliberative and representative bodies are prevented from exercising scrutiny or oversight of executive actions.

Regulatory Delivery Lessons From COVID-19 Responses

May 28, 2020 | Florentin Blanc, Organization for Economic Co-operation and Development

The initial stages of the COVID-19 pandemic response—or the absence of such a response—in Europe and North America provide examples of how not to handle risk communication and manage public expectations.

Rethinking the Value of a Statistical Life

February 10, 2020 | James Broughel, Mercatus Center at George Mason University

The value of a statistical life, a popular way to quantify the benefits of mortality risk reduction in cost-benefit analysis, has fundamental and often overlooked flaws that make many of its uses questionable.

The Trump Administration’s Pandemic Response Is Structured to Fail

May 19, 2020 | Alejandro E. Camacho, University of California-Irvine School of Law and Robert L. Glicksman, The George Washington University Law School

Managing a pandemic response is challenging in the best of circumstances, but the Trump Administration’s poor organizational choices have made those challenges infinitely worse.

Obligation Alleviation During the COVID-19 Crisis

April 20, 2020 | Cary Coglianese, University of Pennsylvania Law School

As the U.S. economy spirals out of control, with more than 20 million Americans having lost their jobs over the last month, the key regulatory question now seems to be: When will the economy re-open? This is a question of “obligation alleviation.”

Deceptive Deregulation

November 2, 2020 | Cary Coglianese and Natasha Sarin, University of Pennsylvania Law School and Stuart Shapiro, Edward J. Bloustein School of Planning and Public Policy at Rutgers University

The Trump Administration has done less deregulating than regulating, and its deregulatory actions have not achieved any demonstrable boost to the economy.

Another Explanation of Justice Gorsuch’s Bostock Vote

July 22, 2020 | Charlton Copeland, University of Miami

How did we get a 6-3 vote from arguably the most conservative Supreme Court of the last 100 years? Justice Neil Gorsuch’s battle against the Chevron doctrine arguably played an important role.

Chile’s Political and Institutional Response to COVID-19

June 24, 2020 | Josefina Court and José Tomás Correa, FerradaNehme

In light of the COVID-19 pandemic, Chile has witnessed the strengthening of the public apparatus and the intensive restriction of constitutional rights, mainly through administrative decisions for public health purposes.

Old Norms and New Challenges in Spain’s Response to COVID-19

May 20, 2020 | Susana de la Sierra, University of Castilla-La Mancha

The complex legal, social, and political realities of Spain’s response to the COVID-19 pandemic may share many aspects in common with regulatory responses in other jurisdictions.

Continuous Judicial Review in Coronavirus Times

May 11, 2020 | Yoav Dotan, Hebrew University of Jerusalem

The Israeli judiciary’s supervision of executive policymaking did not come to a halt during the COVID-19 crisis. Through judicial review, the judiciary exercised significant influence over the government’s policies and over Israeli society during this tumultuous period.

Disrupting Administrative Law in a Public Health Crisis

April 24, 2020 | Andrew Edgar, University of Sydney Law School

Parliamentary review and veto powers, the key controls on regulation-making, have been disabled. The courts may be the only check on the Australian government’s use of public health regulations in this crisis.

Why the Equality Act Remains Important to LGBTQ Equality

July 27, 2020 | Katie Eyer, Rutgers Law School

Bostock was a major victory, both for LGBTQ rights and for the rule of law. But for those who care about LGBTQ equality, Bostock should not cause us to lose sight of the need to continue to push for legislative reforms.

The U.K. Races to Catch Up on COVID-19

April 30, 2020 | Duncan Fairgrieve, British Institute of International and Comparative Law

The U.K. government may have been slow to react in the early days of the COVID-19 crisis, but since then it has moved swiftly to implement expansive lockdown restrictions. These restrictions push the limits of their statutory authority.

Does Regulation Chill Cryptocurrency Trading?

August 31, 2020 | Brian D. Feinstein and Kevin Werbach, The Wharton School of the University of Pennsylvania

Despite the professed antipathy of some cryptocurrency pioneers to regulation, the upsurge in regulation of cryptocurrency markets in recent years does not appear to have dampened market activity.

Did Japan’s Lenient Lockdown Conquer the Coronavirus?

June 10, 2020 | Eric A. Feldman, University of Pennsylvania Law School

Japan is commonly perceived as a nation where a strong state leads a pliable public that is deferential to authority, but the most notable aspect of Japan’s coronavirus policy is the priority placed on individual rights over the protection of public health.

FDA Versus Our Own Stem Cells

April 7, 2020 | A. Rahman Ford writes on stem cell therapy policy

Two years ago, the U.S. Food and Drug Administration (FDA) filed a lawsuit in a federal district court in California that could determine the reach of its regulatory authority over how people use their own stem cells. The FDA stem cell lawsuit has potentially precedent-setting implications for the future of stem cell and regenerative medical research.

Rethinking Judicial Oversight in a Time of Crisis

May 5, 2020 | Cristie Ford, Peter A. Allard School of Law at the University of British Columbia

Around the world, governments need to redesign and reinvigorate their judicial systems, and may do so by renewing a commitment to the rule of law independent of the place-based, in-person rituals that have so long characterized courtroom practices.

The Trump Administration’s Latest Unconstitutional Power Grab

August 24, 2020 | Robert L. Glicksman, The George Washington University Law School and Alejandro E. Camacho, University of California-Irvine School of Law

The Council on Environmental Quality’s recent revisions to regulations implementing the National Environmental Policy Act reflect the Trump Administration’s efforts to sideline any institution capable of thwarting its efforts to subvert the law.

The Jury Is Still Out on One-In-One-Out

February 3, 2020 | Elizabeth Golberg, Harvard Kennedy School’s Mossavar-Rahmani Center for Business and Government

There are undoubtedly outdated laws on the statute books. But one-in-one-out is not the answer to this problem. The situation calls for targeted and rigorous evaluation to see if laws are meeting their objectives, if there are overlaps and inconsistencies between pieces of legislation, and if there are solid grounds for repeal.

The Next Wave of Disability Law

December 8, 2020 | Jasmine E. Harris, University of California, Davis School of Law

Rather than silo disability or limit conversations about disability to the antidiscrimination realm, we ought to deploy disability as a critical lens across areas of law.

COVID-19 and Access to Medical Care in the United States

May 26, 2020 | Allison K. Hoffman and Simone Hussussian, University of Pennsylvania Law School

COVID-19 reveals deep inequities and gaps in access to health care in the United States. These problems are caused both by financing systems and the organization and regulation of the delivery of medical care.

Increasing the Legitimacy of the World Health Organization

April 22, 2020 | Oswald Jansen, Washington College of Law at American University

If an international regulatory body is displacing nations as decision-makers during public health emergencies, principles must govern that authority to compensate for nations yielding some of their control.

The Delayed Response in Wuhan Reveals Legal Holes

April 20, 2020 | Shen Kui, Peking University Law School

China’s legal system, on one hand, puts greater reliance on national public health and medical experts to make authoritative judgments. On the other hand, China’s system also needs the local governments and their public health departments to respond as fast as possible.

Comparative Administrative Law Matters in the Fight Against COVID-19

July 2, 2020 | Neysun A. Mahboubi, Center for the Study of Contemporary China at the University of Pennsylvania

The COVID-19 pandemic constitutes a historic, worldwide crisis that, in time, will reach every aspect of human society. Scholars of every discipline will need to reckon with its implications. The contributions made to The Regulatory Review’s series, “Comparing Nations’ Responses to COVID-19,” stand out for their primary attention to the administrative law and regulatory dimensions of the present crisis in each of the nations covered.

Cost-Benefit Analysis Supports Continuing the National Shutdown

April 20, 2020 | Jonathan Masur and Eric Posner, University of Chicago Law School

President Donald J. Trump faces intense pressure from some corporate executives to lift restrictions as soon as possible. But top public health officials insist that premature lifting of restrictions will produce another wave of contagion. What metric can one use to trade off human lives and economic misery? The answer is cost-benefit analysis.

The Disjointed Dutch Policies to Fight COVID-19

May 18, 2020 | Anne Meuwese, Tilburg Law School

The shortcomings of the COVID-19 regulatory framework result from a number of challenges. Now that it appears that the Netherlands will be in crisis mode for the foreseeable future, hopefully Dutch authorities will take the time to integrate behavioral insights into their regulatory approach.

The Match Between COVID-19 and Plastic Bans

May 11, 2020 | Sarah J. Morath, University of Houston Law Center

In a span of a few months, plastic bans went from hot to not. Before COVID-19, the plastic industry vigorously pushed back against statewide plastic bans. But now it seems as if COVID-19 has breathed new life, albeit for a different reason, into industry efforts to halt single-use plastic bans.

Vietnam’s Astonishing Success at Curbing COVID-19 Outbreaks

June 4, 2020 | Trang (Mae) Nguyen, Temple University Beasley School of Law

Giving credit mainly to Vietnam’s authoritarian toolkit risks missing a more salient narrative about Vietnam’s decades-long effort to improve governance and responsiveness at local levels.

Exporting the Italian Model to Fight COVID-19

April 23, 2020 | Fernanda G. Nicola, American University Washington College of Law

To avoid Italy’s missteps and learn from its successes, local governments around the world should seek ways to cooperate in common purpose to share the most effective measures to respond to the pandemic.

Acting Officials and Delegated Authority

June 29, 2020 | Anne Joseph O’Connell, Stanford Law School

Vast vacancies in Senate-confirmed agency positions throughout the federal bureaucracy raise serious concerns about agencies’ ability to meet their public missions.

South Korea’s Success Against COVID-19

May 14, 2020 | Seung-Youn Oh, Center for the Study of Contemporary China at the University of Pennsylvania

What kind of institutional and legal changes did South Korea adopt to transform itself from a “super spreader” of MERS to a “super stopper” of COVID-19? Examining these changes reveals several lessons from South Korea that other countries should heed in their COVID-19 responses.

Lessons From New Zealand’s COVID-19 Success

June 9, 2020 | Richard W. Parker, University of Connecticut School of Law

New Zealand adopted and executed a strong, science-driven, proactive, and centrally planned response to COVID-19, whereas the United States adopted a weak, incremental, and decentralized response.

Beyond Fighting Wildfires

January 13, 2020 | Jim Pauley, National Fire Protection Association

Preventing wildfire ignitions whenever possible is important. Although wildfire safety principles can effectively reduce risk in communities, they are generally only adopted on a voluntary, non-systematic basis. Voluntary action is helpful, but regulation is critical.

France’s Health Crisis Is a Democracy Crisis, Too

April 21, 2020 | Thomas Perroud and Emma Guernaoui, University of Paris

French politicians repeat a rhetoric of surprise to describe the coronavirus crisis because it justifies the government’s unpreparedness. But ultimately, the French people are victims of regulatory failures.

Regulatory Justification and Coordination in South Africa

April 29, 2020 | Geo Quinot, Stellenbosch University

The regulatory response to the COVID-19 pandemic in South Africa is noteworthy because of how the government has justified sweeping restrictions with scientific expertise and because of the challenges the government faces due to the lack of horizontal regulatory coordination.

Italy’s Complex Legislative Framework Impairs its COVID-19 Response

June 8, 2020 | Nicoletta Rangone, LUMSA University

Despite Italian policymakers’ good intentions, the measures they have put in place to combat COVID-19 have often clashed with the country’s complex legislative framework.

A Distinction in Agency Design Without a Difference

February 17, 2020 | Richard L. Revesz, New York University School of Law

The U.S. Supreme Court will soon hear argument on Seila v. CFPB, presenting a challenge to the constitutionality of the structure of the Consumer Financial Protection Bureau. The Solicitor General’s arguments call into question the constitutionality of multi-member agencies, but the central premise of his argument is wrong.

COVID-19 and Uncertainties in the Value Per Statistical Life

August 5, 2020 | Lisa A. Robinson, Harvard T.H. Chan School of Public Health

The approach that economists use to estimate the value of reducing the risk of death—the value per statistical life—is frequently misunderstood. Understanding the underlying concepts and the uncertainty in these estimates is essential to informing policy choices.

Portugal’s Response to COVID-19

July 1, 2020 | Ana Santos Rutschman, St. Louis University School of Law

The way in which Portugal addressed the challenges posed by the coronavirus pandemic has been hailed as one of the most successful national responses to COVID-19.

COVID-19 and Cooperative Administrative Federalism in Germany

May 13, 2020 | Johannes Saurer, University of Tuebingen

The central role of federal and state governments in both guideline-setting and implementation reflects two traditional patterns of federal governance in Germany: administrative federalism and cooperative federalism.

OIRA and the Future of Cost-Benefit Analysis

May 19, 2020 | Stuart Shapiro, Edward J. Bloustein School of Planning and Public Policy at Rutgers University

When political preferences overwhelmingly dominate over sound analysis, as has repeatedly happened during the Trump Administration, it is time to reassess both how cost-benefit analysis can best be used and what role the Office of Information and Regulatory Affairs should play in regulatory decision-making.

EARN IT Act Calls Internet Content Moderation Into Question

March 30, 2020 | Abigail Slater, Fox Networks Group

The U.S. Senate Committee on the Judiciary recently convened a hearing on draft legislation known as the EARN IT Act. The legislation is aimed at tackling child pornography online, but it has raised strong opposition from some internet companies.

Singapore’s Regulatory Response to COVID-19

June 15, 2020 | Kevin Y.L. Tan, National University of Singapore

The COVID-19 crisis was tailor-made for Singapore’s executive, top-down, interventionist, and managerial style of governance. For the most part, the government has acted sensibly and responsibly, and was therefore able to secure widespread cooperation from the people.

Recent Developments in Artificial Intelligence Law and Policy

April 25, 2020 | Lee Tiedrich, B.J. Altvater, and James Yoon, Covington & Burling LLP

Guest contributors discuss recent changes in artificial intelligence regulation in a special edition of The Regulatory Review’s Saturday Seminar. The contributors evaluate key provisions of the National Artificial Intelligence Initiative Act, introduced by members of the U.S. House of Representatives in March 2020, and recent federal, state, and local efforts to regulate AI.

Why Brazil’s COVID-19 Response Is Failing

June 22, 2020 | Mariana Urban and Eduardo Saad-Diniz, University of São Paulo

Fueled by the denialist rhetoric of Brazilian President Jair Bolsonaro, the Administration’s internal disputes have delayed implementation of regulatory measures in the health system and increased ongoing political instability.

The Supreme Court’s Doublethink on Arbitration and Administration

April 27, 2020 | Paul R. Verkuil, College of William and Mary

How did arbitration, an alternative decision regime about which the U.S. Supreme Court knows little, become so favored that a majority of justices have been willing to embrace it almost without question? The U.S. Supreme Court’s 1984 decisions in Chevron v. Natural Resources Defense Council and Southland Corp. v. Keating, taken together, tell an unappreciated tale of doctrinal contradiction—a kind of Orwellian “doublethink.”

Failing to Think Properly About the Value of a Statistical Life

March 16, 2020 | Kip Viscusi, Vanderbilt University Law School

The value of a statistical life remains the mainstream economic approach to valuing mortality reduction benefits because it is tied to the underlying principle for benefit assessment, which is society’s willingness to pay for the benefit.

The ADA, Telework, and the Post-Pandemic Workplace

September 7, 2020 | Brandy L. Wagstaff and Jacob Quasius, George Mason University Antonin Scalia Law School

The pandemic has made clear that telework is now more prevalent and successful than ever before. The U.S. Equal Employment Opportunity Commission should update its regulatory guidance on telework to make it still clearer that such offsite work can count as a reasonable accommodation under the Americans with Disabilities Act.