The Regulatory Review highlights the top essays written by our contributors in 2023.
The Regulatory Review is pleased to highlight our top regulatory essays of 2023 authored by a select number of our many expert contributors. These pieces, selected 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.
Sustainable Transportation for Rural Communities
March 29, 2023 | Jesus M. Barajas, University of California, Davis
Regulators must redress transportation inequities in rural and disadvantaged communities.
Affirmatively Disclosing Agency Legal Materials
September 11, 2023 | Bernard W. Bell, Rutgers Law School; Cary Coglianese, University of Pennsylvania Carey Law School; Michael Herz, Benjamin N. Cardozo School of Law; Margaret B. Kwoka, Ohio State Moritz College of Law; Orly Lobel, University of San Diego School of Law
ACUS takes an important step forward toward improving agency disclosure of legal materials.
FDA Advances Program for Real-World Evidence
February 27, 2023 | Blair Bean Robertson, Thomas Jefferson University Hospitals
FDA’s approach to evidence-based decision-making may not be addressed to the right people.
DNA Testing is Not “Just Saliva”
January 9, 2023 | Samuel Becher, Victoria University of Wellington, New Zealand and Andelka M. Phillips, TC Beirne School of Law, University of Queensland, Australia
To protect consumers, governments should step in to address the risks of DNA testing.
Modernizing the “Value of a Statistical Life”
September 5, 2023 | James Broughel, Competitive Enterprise Institute
Regulators should adopt alternative approaches to valuing avoided mortality in regulatory analysis.
A New Approach to Regulatory Budgeting in Virginia
May 29, 2023 | Reeve T. Bull, Virginia Office of Regulatory Management
New agency aims to implement a more impactful approach to reducing regulatory costs.
One Year On, Bruen Really Is As Bad As It Reads
August 2, 2023 | Scott Burris, Temple University Beasley School of Law
The Supreme Court rigidly limits governments to simplistic, outdated solutions to firearm violence.
AI and the Antitrust Regulator
June 12, 2023 | Cary Coglianese, University of Pennsylvania Carey Law School
Antitrust regulators can improve their performance by relying on responsible use of artificial intelligence tools.
AI, Due Process, and Trade Secrets
September 4, 2023 | Cary Coglianese, University of Pennsylvania Carey Law School
A recent court decision about pencils may turn out to help protect rights in an era of artificial intelligence.
The Coast Guard’s Looming Challenges
November 27, 2023 | Cary Coglianese, University of Pennsylvania Carey Law School
New maritime risks necessitate further strategic review of the Coast Guard’s legal authority and mission support capabilities.
Promoting Best Practices for U.S. Regulatory Analysis
October 12, 2023 | Joseph Cordes, Susan Dudley and Clark Nardinelli, George Washington University Regulatory Studies Center; Donald S. Kenkel, Cornell Brooks School of Public Policy; Lisa A. Robinson, Center for Health Decision Science; Craig Thornton, Society for Benefit-Cost Analysis; and W. Kip Viscusi, Vanderbilt University Law School
Benefit-cost analysis experts advocate changes to a draft update of OMB Circular A-4.
FDA’s Role in Access to Reproductive Health Care
April 17, 2023 | Laura Dolbow, University of Pennsylvania Carey Law School
Recent abortion pill litigation underscores the significance of calls to make birth control pills available over the counter.
Patent Law Could Also Limit Mifepristone Access
Apr 22, 2023 | Laura Dolbow, University of Pennsylvania Carey Law School
Existing patents deter the marketing of more affordable generic drugs that could be used off-label for abortions.
How Patents Contribute to High Drug Prices
October 16, 2023 | Laura Dolbow, University of Pennsylvania Carey Law School
Patents covering drugs selected for Medicare price negotiation show how patents influence drug prices.
The Supreme Court’s Wetland Saga Continues
July 13, 2023 | Monika U. Ehrman, SMU Dedman School of Law and Robin Kundis Craig, USC Gould School of Law
Rejecting federal agencies’ interpretation of the Clean Water Act, the Supreme Court limits the application of federal law over wetlands.
New Technology Requires New Regulatory Ambitions
October 9, 2023 | Kevin Frazier, Crump College of Law of St. Thomas University
In the face of new technologies, a nonprofit auto safety body provides an institutional model for elevating public protection ambitions.
Trauma-Informed Regulation
August 14, 2023 | Arie Freiberg, Monash University in Melbourne, Australia
A trauma-informed approach to regulation should seek to minimize the stress and trauma of regulatory investigations.
The New Vision in Biden’s New Regulatory Order
May 15, 2023 | James Goodwin and Amy Sinden, Center for Progressive Reform
The Biden Administration reimagines the federal government’s regulatory framework.
The Fatal Flaws in the “Abortion Pill” Decision
October 23, 2023 | Peter Grossi, University of Pennsylvania Carey Law School
By second-guessing FDA safety determinations, the Fifth Circuit challenges the Supreme Court to restore agency deference.
Regulatory Discretion Fosters Clean Tech
September 18, 2023 | Shon Hiatt, USC Marshall School of Business, and Jake B. Grandy, University of Arkansas, Walton College of Business
Increased regulatory discretion can improve outcomes for entrepreneurs and enhance the impact of stakeholder activists.
Premerger Notification Proposal Faces a Rocky Path
August 28, 2023 | Justin (Gus) Hurwitz, University of Pennsylvania Carey Law School’s Center for Technology, Innovation, and Competition
The FTC’s proposed changes to its premerger notification form are unlikely to survive judicial review.
Bringing Professional Regulation Into the Future
June 26, 2023 | Rachel Kenna, Chief Nursing Officer for Ireland and Assistant Secretary General in the Department of Health
Ireland’s Chief Nursing Officer endorses a flexible and compassionate approach to health care regulation.
Net-Zero Emission Pledges May Not Lead to Full Decarbonization
February 13, 2023 | Inhwan Ko, Nives Dolšak, and Aseem Prakash, University of Washington, Seattle
Examining countries’ net-zero pledges reveals variations and loopholes that will allow for slippage in climate progress.
Public Opinion Supports Electric Vehicle Tax Credits
January 23, 2023 | Sijeong Lim, Korea University; Nives Dolšak and Aseem Prakash, University of Washington; Seiki Tanaka, University of Groningen
The U.S. public prefers electric vehicle tax credits be open to cars manufactured anywhere.
The Innovation-Inducing Effects of Carbon Pricing
July 24, 2023 | Sijeong Lim, Korea University and Aseem Prakash, University of Washington, Seattle
Taxing carbon emissions, although unpopular, may be the best way to fund the fight against climate change.
OpenAI Investigation Puts AI Companies on Notice
September 25, 2023 | Patrick K. Lin, author of “Machine See, Machine Do”
The FTC’s investigation of ChatGPT may shed light on how consumer protection law applies to artificial intelligence.
Changes and Challenges to ESG Investing
April 25, 2023 | Rachel Mann and Elizabeth S. Goldberg, Morgan, Lewis, & Bockius, LLP
The Labor Department’s new rule sets forth a principles-based approach to regulating ESG investing.
What’s Left, And What’s Next, for Racial Diversity in College Admissions
July 17, 2023 | Cara McClellan, Advocacy for Racial and Civil (ARC) Justice Clinic at the University of Pennsylvania Carey Law School
The Supreme Court has severely limited more than 45 years of precedent holding it constitutional for colleges and universities to consider race in admissions..
Who Favors Making ALJs At-Will Employees?
October 2, 2023 | Alan B. Morrison, George Washington University Law School
An upcoming Supreme Court case highlights why businesses and individuals favor for-cause protection for administrative law judges.
The Growth in Business Support for Regulation
April 19, 2023| J.S. Nelson, Harvard Law School
Businesses in the United States are increasingly supporting regulation and regulators against judicial decisions curtailing agency authority.
Merger Law Is Dante’s Inferno Revisited
March 13, 2023 | Richard J. Pierce, Jr., George Washington University School of Law
The shift by agencies away from the current guidelines on mergers and acquisitions has left firms in limbo.
Are Most Federal Statutes Unconstitutional?
Aug 28, 2023 | Richard J. Pierce, Jr., George Washington University School of Law
Recent appellate judge’s dissent charts a radical approach to the nondelegation doctrine.
Does the Constitution Require Agencies to Use Biased Judges?
October 2, 2023 | Richard J. Pierce, Jr., George Washington University School of Law
The Supreme Court should uphold longstanding legislation protecting the neutrality of administrative law judges.
ERISA Plan Fiduciaries and ESG Factors
April 26, 2023 | Samantha J. Prince, Penn State Dickinson Law
ERISA plan fiduciaries must be permitted to consider ESG factors when selecting plan investments.
Modernizing Regulatory Review
May 15, 2023| K. Sabeel Rahman, Cornell Law School
Recent Biden Administration reforms will better prepare the regulatory system to meet society’s challenges.
California’s Attempt to Outlaw Caste-Based Discrimination
November 20, 2023 | Sangh Rakshita and Sofia Ranchordas, Tilburg Law School in the Netherlands
Existing grounds of anti-discrimination law fail to protect vulnerable groups from bias on the basis of ancestry.
Control Over Litigation and Agency Rulemaking
Jan 30, 2023 | Connor Raso, Public Company Accounting Oversight Board
Private rights of action lead agencies to seek greater policy control through rulemaking.
Punting Social Media Company Liability to Congress
July 10, 2023 | Amanda Shanor, Wharton School of the University of Pennsylvania
The Supreme Court affirms social media companies’ business models, dodging for now the issue of liability for harmful speech.
Threats to Administrative Competence
June 19, 2023 | Stuart Shapiro, Rutgers University
Civil servants report that the Trump Administration posed an existential threat to expertise in the federal bureaucracy.
Artificial Intelligence for Retrospective Regulatory Review
September 12, 2023 | Catherine M. Sharkey and Cade Mallett, New York University School of Law
Artificial intelligence can help agencies review and improve their existing regulations.
With Its Student Loan Decision, the Court Again Limits Agency Authority
July 20, 2023 | Katherine Shaw and Crawford Schneider, University of Pennsylvania Carey Law
In Biden v. Nebraska, the Supreme Court again asserts its own authority to make society’s most important policy choices.
Fiduciary Governance for 401(k)s
April 27, 2023 | Natalya Shnitser, Boston College Law School
Retirement policy must evolve to account for participant preferences.
OMB Should Promote Evidence-Based Regulatory Design
August 7, 2023 | Ganesh Sitaraman, Vanderbilt Law School and Shelley Welton, University of Pennsylvania Carey Law School
OMB’s draft Circular A-4 in places provides vague guidance that lets ideology—not evidence—drive regulatory design.
Why “Big Data” Is a Big Deal
November 6, 2023 | Abigail Slater, antitrust and technology attorney
The ongoing Google antitrust trial could shape the future role of big data in digital markets and artificial intelligence.
“Making a Fuss” About Disability Rights
May 8, 2023 | Heather Swadley, Lehigh University
Judy Heumann’s fight for disability rights in the 1970s spawned an enduring, cross-disability movement.
To Be Agile, Think Pragmatically
July 31, 2023 | Paul R. Verkuil, former Chairman of the Administrative Conference of the United States
Recent efforts to promote agile governance have deep roots in American pragmatism.
Precedent in Agency Adjudication
June 5, 2023 | Christopher J. Walker, University of Michigan Law School; Melissa F. Wasserman, University of Texas at Austin School of Law; Matthew Lee Wiener, University of Pennsylvania Carey Law School
Agencies should use ACUS’s recommendation to develop transparent approaches to precedent.
Opening the Skies to Passengers Who Use Wheelchairs
March 28, 2023 | Melissa Welch-Ross and Thomas R. Menzies, National Academy of Sciences, Engineering, and Medicine
Airline transportation needs to address accessibility issues for passengers with disabilities.
Constitutional Challenges to Agency Adjudication
July 18, 2023 | Matthew Lee Wiener, University of Pennsylvania Carey Law School
The Supreme Court grants district-court jurisdiction in an opinion hampering agencies’ adjudicatory authority.
303 Creative and Constitutional Law by Stipulation
July 24, 2023 | Tobias Barrington Wolff, University of Pennsylvania Carey Law School
The Supreme Court undercut antidiscrimination law in a case where the key issues were stipulated by the parties, leaving lower courts little guidance in how to apply its ruling.
This page is part of a six-part series, entitled The 2023 Regulatory Year In Review.
