Internal Administrative Law

From: Michigan Law Review

Gillian E. Metzger & Kevin M. Stack, Internal Administrative Law, 115 Mich. L. Rev. 1239 (2017).

Designing Safety Regulations for High-Hazard Industries

From: The Regulatory Review

and

The Value of Public Participation in Rulemaking

From: The Regulatory Review

***

Or take the questions of Chevron and Seminole Rock deference. (For personal reasons, I prefer to call it Seminole Rock—not Auer—deference.) To most lawyers, these are obscure matters, though many appreciate that Chevron has to do with the authority of regulatory agencies. But those in this room know that questions of deference go to fundamental issues in our constitutional democracy: What ability should the executive branch have to make law? What role do our courts have in pronouncing what the law is? To what extent should we permit Congress to absent itself from some of the most important legislative decisions that are made for our society?

What’s the Difference Between ‘Major,’ ‘Significant,’ and All Those Other Federal Rule Categories? A Case for Streamlining Regulatory Impact Classification

From: SSRN

CEI Issue Analysis No. 8, 2017

Clyde Wayne Crews Jr.

Abstract

Bureaucracy, rather than interaction with elected representatives, dominates the relationship of the individual to the government. The number of rules promulgated by executive branch agencies far outstrips the number of laws passed by Congress, which makes getting a handle on the impact of federal regulation daunting. Further complicating the federal regulatory enterprise is an array of official designations of rule types and effects. Some types of rules are defined in legislation; some in executive orders; other designations were the creations of administrators.

One Month Out: A One-In, Two-Out Program Status Report

From: American Action Forum

Dan Goldbeck

***

Overall, the Administration is well on its way to meeting, and even exceeding, the EO’s FY 2017 goal. Most of the agencies have not published actions with quantifiable economic estimates. However, if the goal under EO 13,771 is to get to net annual costs “no greater than zero” by the end of the fiscal year, then agencies doing nothing clearly still achieves that goal. Across the various agencies, two of the actions included were regulatory actions that, per agency claims, impose only de minimis costs. If those actions are excluded, the cumulative deregulatory/regulatory action ratio exceeds two to one.

The Regulators: Our Invisible Government (1982 PBS documentary now on C-SPAN)

From: Notice & Comment | A Blog from the Yale Journal on Regulation and the ABA Section of Administrative Law & Regulatory Practice

by Chris Walker

Many of us remember seeing the 1982 PBS documentary The Regulators: Our Invisible Government in our administrative law course in law school. C-SPAN has made this instant adlaw classic available for public viewing on its website here. [HT Linda Jellum!]

Here’s a summary of the documentary from C-SPAN:

Read Complete Post

Genealogies of cost–benefit analysis in transatlantic regulatory cooperation

Editor’s Note: For the origin of regulatory benefit-cost analysis, see here.

From: Comparative European Politics

, Volume 15, Issue 5, pp 729–750

Fernanda G. Nicola

The Evolution of Benefit-Cost Analysis into Federal Rulemaking

Editor’s Note: Please see the detailed discussion of Dr. Schmid’s pioneering work here. Also see EPA’s internal review of its use of benefit-cost analysis which states, “Beginning with the “Quality of Life” reviews under the Nixon Administration, the requirements for review by OMB have evolved from a relatively simple analysis of costs to the comprehensive benefit-cost analyses required for the current Regulatory Impact Analyses. Often, the factors required for review by OMB are not the same as those specified for consideration in the environmental statutes.

From: Yale Notice & Comment | A Blog from the Yale Journal on Regulation and the ABA Section of Administrative Law & Regulatory Practice

The Origin of Regulatory Cost-Benefit Analysis

Editor’s Note: The following 1969 landmark article established the intellectual basis for regulatory cost-benefit analysis. It all began here.

Effective Public Policy and the Government Budget: a Uniform Treatment of Public Expenditures and Public Rules

by

Dr. A. Allan Schmid, Visiting Professor to the Office of the Secretary of the Army

 

  • Click here to read “Effective Public Policy and the Government Budget” (pdf 2 MB)

 

Joint Economic Committee, 91st Congress, First Session Analysis and Evaluation of Public Expenditures: PPBS System US Government 1969, “A compendium of papers submitted to the Subcommittee on Economy and Government of the Joint Economic Committee,” Volume I, pages 579-591.

Executive Branch Regulatory Review Policies Set the Analytic Gold Standard for Independent Financial Agencies to Follow

From: The Regulatory Review

Structural Reforms to Improve Cost-Benefit Analyses of Financial Regulation

***

Similarly, the SEC’s recent rulemaking problems demonstrate the shortcomings of regulatory analysis at independent agencies. Since the early 1990s, the federal courts have invalidated a slew of SEC rules as a result of the lack of an adequate cost-benefit analysis. Following several judicial rebukes, the SEC decided to update its rulemaking guidance to stave off further such roadblocks to the implementation of its policies. The resulting guidance document borrows very heavily from the White House Office of Management and Budget’s Circular A-4, which instructs executive branch agencies on how to perform cost-benefit analyses. Since adopting protocols that mirror that used in the executive branch, the SEC’s cost-benefit analysis has become, according to the Committee on Capital Markets Regulation, “a candidate for the ‘gold standard’ of cost-benefit analysis in the United States.”