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Regulation by Litigation


Regulation by Litigation poses challenges both to the business community and to the general public. To foster debate on how Regulation by Litigation should be addressed, CRE is proposing:

  • Specific solutions for each of the examples of Regulation by Litigation currently underway.

  • A process for developing an overall public policy framework for addressing the Regulation by Litigation issue.

  • A CRE symposium of Regulation by Litigation which would bring together key stakeholders.

The CRE is also establishing an Interactive Public Docket on Remedies for Regulation by Litigation that will both provide an ongoing discussion forum and a source of ideas for the CRE. Please provide the CRE with your thoughts on remedies for Regulation by Litigation.

Specific Solutions

DOJ Antitrust Suit Against Microsoft. DOJ, and the State plaintiffs, should take the necessary actions to postpone the litigation until the Department submits its proposed remedy to the public for comment through publication in the Federal Register. The proposal would be subject to the "good government" laws to which all significant regulatory actions are required to adhere, including the Administrative Procedures Act, the Paperwork Reduction Act, and the Regulatory Flexibility Act. The DOJ proposal should also be subject to relevant Executive Orders including No. 12866 Regulatory Planning and Review.

HUD Gun Suit. The Department of Justice should direct HUD to terminate their legal/organizing assistance to the housing agencies. If HUD believes that this assistance is in the national interest, they should ask Congress for authorization and an appropriation to carry out this work.

The Lead Paint Case. The defendants should request that the National Governor's Association (NGA) should review the issue and file an amicus curiae brief in their support. While the issue is being addressed by the NGA, States and municipalities should postpone ongoing litigation. Subsequent to action by the NGA, if the State/municipal executives still believe that litigation is warranted, they should obtain authorization from their legislative bodies to take legal action against each specific company and/or association.

Agricultural Biotechnology. USDA, EPA and FDA should file an amicus curiae brief defending the current three-agency regulation of agricultural biotechnology and oppose the litigation.

HMOs. Any changes to the operations of HMOs and other health care providers should be determined through the legislative processes. Plaintiffs who attempt to legislate through the Judicial Branch should be identified and their actions analyzed and highlighted in a continuing public disclosure by CRE and similar institutions.

General Solution/Presidential Commission

Congress should authorize a Presidential Commission to analyze the Regulation by Litigation issue and present its findings and recommendations to the White House, Congress and the public. The Commission Chair would be chosen by the President with additional members selected by the majority and minority leadership of the House and Senate. All Commission proceedings should be open to the public and the Commission should establish an internet-based Interactive Public Docket to ensure full public participation in the Commission's deliberations. All existing and planned Regulation by Litigation should be suspended pending the final report from the Commission.

CRE Symposium on Regulation by Litigation

The CRE is considering a symposium on Regulation by Litigation. Key elements of the symposium would include:

  • Requesting that the National Governor's Association co-sponsor the symposium.

  • Inviting participants from:

    • Affected industries;

    • Federal agencies;

    • State/municipal governments;

    • Litigating law firms;

    • Law and public policy academicians; and

    • Other interested parties.

Issues to be addressed at the CRE symposium would include:

  • A moratorium of Regulation by Litigation.

  • Creation of a Presidential Commission to examine the issue and make recommendations.

  • The industry specific solutions recommended by the CRE.

  • S. 1269, the Fairness in Litigation Act.

Please provide your views on remedies to Regulation by Litigation to the Interactive Public Docket

Read other items

  • CRE's overview of Regulation by Litigation
  • Microsoft Litigation
  • The HUD Gun Suit
  • The Lead Paint Case
  • Agricultural Biotechnology
  • Health Maintenance Organizations
  • The Lead Paint Case