Why less regulation isn’t necessarily better

From: Chicago Booth Review

The longstanding debate about government oversight is giving way to a new understanding of how to craft more effective industry rules

BRIAN WALLHEIMER

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But in 1962, Stigler threw a wrench into this traditional way of thinking. In a groundbreaking paper on electricity prices, where the sellers were monopolies, he demonstrated that government regulation hadn’t lowered electricity prices as much as expected. If regulation didn’t work to bring prices toward marginal costs in a monopoly, what kind of effect was it having in other situations? Were government regulations at all effective in correcting private-market failures?

A Comment on Administrative Law from the Inside Out—Essays on Themes in the Work of Jerry L. Mashaw

Editor’s Note: Originally posted on Regulatory Pacesetters.

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

by Jim Tozzi

After a number of weekends the Editor has finished reading a very informative book written by a score of talented scholars and edited by Professor Parrillo of Yale University on the works of an administrative law legend, Professor Mashaw.

Selfishly we often read articles from the perspective of issues we are working on, in this instance centralized regulatory review and the Data Quality Act.

Testing the Effects of Auer Deference

From: CATO at Liberty

By Derek Bonett

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In comes Daniel Walters, a Regulatory Fellow at the University of Pennsylvania law school. His most recent law review article empirically tests the above hypothesis: that agencies will promulgate vaguer rules in the aftermath of the Auer case than before. He finds that this is not the case, and – using an empirical approach to the study of law that ought to be much more popular – cannot dismiss the null hypothesis that there is no change in the measured vagueness of federal regulations before and after Auer. In this blog post, I would like to highlight a major shortcoming of Professor Walter’s otherwise commendable methodological effort.

One-In, X-Out: Regulatory offsetting in selected OECD countries

From: OECD

Trnka, D. and Y. Thuerer (2019), “One-In, X-Out: Regulatory
offsetting in selected OECD countries ”, OECD Regulatory
Policy Working Papers, No. 11, OECD Publishing, Paris.
http://dx.doi.org/10.1787/67d71764-en

 

OIRA Reinvigorated

From: The Regulatory Review

Over the last two years, OIRA has made many positive contributions to the administrative state.

From 1981 through 2017, staffing numbers at the Office of Information and Regulatory Affairs (OIRA) declined steadily. That trend was reversed in 2018. OIRA’s need for additional staff reflected the diverse projects it has undertaken over the last two years. These projects have involved improving the accuracy of the Unified Agenda, working with the Administrative Conference of the United States (ACUS) to improve the efficacy and efficiency of the Paperwork Reduction Act (PRA), and implementing the first regulatory budget, a regulatory reform idea that had been pioneered by the Office of Management and Budget (OMB) in 1979.

D.C. Circuit Review – Reviewed: The Use of Philosophers by the D.C. Circuit

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

by Aaron Nielson

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Much of Professor Rao’s scholarship focuses on administrative law — which no doubt will be discussed during her confirmation hearing. That scholarship, for what it is worth, is “well regarded” by folks from different ideological perspectives. As a law student, however, she published an interesting article about something very different: philosophers. Here at Notice & Comment, we like to help students find note ideas. In that spirit, I thought it would be fun to revisit her student note, A Backdoor to Policy Making: The Use of Philosophers by the Supreme Court.

Regulatory Bundling

From: SSRN

Yale Law Journal, Vol. 128, 2019

University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 857

U of Chicago, Public Law Working Paper No. 682 | Cornell Legal Studies Research Paper No. 18-47

Jennifer Nou, Edward Stiglitz

Abstract

Regulatory bundling is the ability of administrative agencies to aggregate and disaggregate rules. Agencies, in other words, can bundle what would otherwise be multiple rules into just one. Conversely, they can split one rule into several. This observation parallels other recent work on how agencies can aggregate adjudications and enforcement actions, but now focuses on the most consequential form of agency action: legislative rules. The topic is timely in light of a recent executive order directing agencies to repeal two regulations for every new one promulgated. Agencies now have a greater incentive to pack regulatory provisions together for every two rules they can repeal.

Patricia Wald’s Great Legacy

Editor’s Note: See also Proper and Desirable Intervention by the President in Agency Rulemaking.

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

by Jeffrey Lubbers

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As to the ex parte communications, in a key passage, Judge Wald, after ruling that the EPA had met its obligations to defend its rule based on the public rulemaking record, defended presidential involvement in rulemaking as desirable. She wrote:

What does $33 billion in regulatory cost savings really mean?

From: Brookings

Connor Raso

The Trump administration recently issued a report and supporting materials summarizing its regulatory cost cutting efforts.  The report, authored by the Office of Information and Regulatory Affairs (OIRA), claimed total regulatory cost savings of $23 billion in Fiscal Year 2018.  This is a notable increase from the $8.1 billion in savings claimed in the prior year.  Moreover, the 2018 deregulatory items were on the whole more substantive than the 2017 list, which was bolstered deregulatory actions already taken by Congress, initiatives largely formulated in the Obama administration, routine periodic update rules, and rules required by statute (a more complete accounting is available from a prior piece in this Brookings series).

The Courts’ Take On Obama-Era Regs: You Are Erased

From: Law360/SSRN

By Andrew Oringer and Samuel Scarritt-Selman

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Conclusion

One may wonder whether there are lessons in the cases described above for future
policymakers, as the ability of regulatory efforts to withstand judicial scrutiny is clearly not to
be taken for granted. Will it be harmful to a regulation to acknowledge going beyond clear
congressional intent? Will expressions of desire to effect policy change place a regulatory
effort in additional jeopardy? These and other similar questions may be considered with
increasing focus as regulators pursue policy-driven regulatory efforts.