Is stare decisis on a path to extinction?

For decades the academy of administrative law has written extensively on judicial precedent. Students are indoctrinated with the principle of Stare decisis, a Latin term which means “to stand by that which is decided”.

The emphasis on judicial precedent has a strong economic argument in support of its preservation independent of its merits because mastering the details of court rulings should yield a competitive advantage in litigation as a result of its questionable domination of law school curricula.

However with each passing day the emphasis on the widespread acceptance of judicial precedent may be misplaced however meritorious.  Consider for example a post of Professor Richard Pierce on a recent ruling of the Supreme Court; he concludes:

PPBS: The Torch That Lead To Centralized Regulatory Review

PPBS, Planning, Programming and Budget System, introduced by Secretary of Defense Robert McNamara, has a number of offspring.

It immediately shifted power from budget analysts to quantitative analysts. PPBS shops were prominent in the Department of Defense and eventually the concept was expanded to the civilian agencies.

As is the case with numerous government reform measures it disappeared; however some of its offspring remain in place. One of the most notable is centralized regulatory review. Centralized regulatory review is a descendant of the requirement that benefit-cost analyses be applied to regulations. See this article for the history.

A Very Memorable Quotation

Justice Breyer:

OIRA is “the lineal descendant of efforts by Presidents Nixon, Ford, and Carter to achieve greater coordination within the huge Executive Branch.”

Update on the CRE Position on the EPA Silent Science Initiative

CRE is not supportive of the EPA science initiative at this time because it creates a new regulatory regime without first exploiting to the fullest the existing regulatory regime which consists of the Data Access Act and the Data Quality Act. It has been nearly a month since CRE announced its opposition to the EPA Silent Science Initiative. During that time period we have examined the position of others and it appears that with the exception of NGOs, CRE is the only organization which has stated an outright opposition to the EPA proposal.

Here are CRE positions on this matter:

Icons of the Administrative State

In that the Editor will approach his eightieth year in several weeks, he has been asked to provide the names of his contemporaries who not only made a noteworthy but also a unique impact on the functioning of the Administrative State, who did so both as a federal employee and in prior or subsequent non-federal employment, who were confirmed by the Senate and who are currently employed in their chosen field of endeavor.

Notwithstanding the aforementioned formidable list of qualifying conditions the names that come to mind in very short order include but are not limited to:

Quantum Law: An interdisciplinary exploration of quantum theory, law and ethics

Editor’s Note: The conference programme is available here.

St Mary’s University, London, UK will hold a conference on Quantum Law on Tuesday 26th June 2018.  Mr. Bruce Levinson, CRE Senior Vice President—Regulatory Intervention will make a presentation. For additional information contact Mr. Levinson at the CRE.

The following has been extracted from the brochures describing the program.

Quantum theory, the study of the nature and behaviour of matter and energy on the atomic and subatomic level, has come to occupy a dominant position in physics. It is however increasingly important also as both the basis of new or potential technologies and as a broader idea outside of subatomic physics itself, as both an artefact of popular culture but also a means of explaining other complex phenomena.

CRE’s Emphasis on Data Access and Data Quality is Rooted in the Paperwork Reduction Act Amendments of 1995

Notwithstanding regulatory folklore to the contrary, the Data Access Act and the Data Quality Act did not evolve from an overreach of centralized regulatory review but instead are based upon an explicit grant of authority from the Congress to the Director of OMB in the 1995 Amendments to the Paperwork Reduction Act.

44 U.S. Code § 3504 – Authority and functions of Director

  • The Director shall oversee the use of information resources to improve the efficiency and effectiveness of governmental operations to serve agency missions, including burden reduction and service delivery to the public. In performing such oversight, the Director shall—(B) provide direction and oversee—

Support for EPA’s ANPRM on Benefit-Cost Analysis

EPA is issuing an NPRM to revamp its procedures for the use of benefit-cost analysis in evaluating its regulatory proposals.

OIRA alumnus Paul Noe states:

But one of the greatest yet most readily addressable impediments to smarter regulation is that regulatory agencies such as EPA too often have interpreted their statutes to limit their ability to fully engage in benefit-cost balancing and thus to comply with the presidential directives to do more good than harm. Yet, the actual text of the statutes typically does not prohibit benefit-cost balancing and thus does not require or authorize non-compliance with the presidential benefit-cost orders.

Accolades to the ABA for Encouraging the Participation of other Disciplines in Discussions of Administrative Law

There is a tendency for many disciplines to operate as a “silo”, that is to be unaware or insensitive to the contribution other disciplines might make to their discussions.  Some might think the last place that such an interdisciplinary approach might be undertaken is in the arcane legal arena; in particular Administrative Law whose domain includes one of the most significant areas of concern in a democracy — the separation of power among the three branches of government.

Not to worry, on June 8 the Administrative Law Section of the American Bar Association held a panel discussion on centralized regulatory review. In doing so 40% of the panel consisted of political scientists.

American Association for the Advancement of Science-Federal Focus Symposium on Data Access

In order to encourage discussion and debate on the Data Access issue, the American Association for the Advancement of Science (AAAS) and Federal Focus, Inc. jointly sponsored a symposium on the Data Access issue on February 26, 1999, in Washington, D.C. Specific focus of the discussion was on the data provisions contained in the FY 1999 Omnibus Appropriations Act (P.L. 105-277) and conference report. Under that Act, OMB was required to amend its Circular A-110 (“Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations”) to make publicly-funded research data available to the public through requests under the Freedom of Information Act (FOIA).