Regulatory Capture, Ancient and Modern

From: RegBlog | Penn Program on Regulation

Until recently, the term regulatory capture seemed stale, a mid-20th century academic construct incapable of describing the latest manifestations of special interest influence. At the opportune time, new empirical work by academics, featured in Daniel Carpenter’s and David Moss’s book Preventing Regulatory Capture, refines the concept to discern and measure capture more accurately, and, in that matter, engender plausible, contextual solutions. Many of the novel forms capture now takes and the projected remedies, are covered in the essays in this RegBlog series. At this point, a brief history of the concept of capture, in particular its antecedents in political thought, may inform, if not entertain.

An Updated Look at OMB Circular A-119; Voluntary Consensus Standards

From: SSRN

An Updated Look at the Federal Policies Governing How Agencies Use Voluntary Consensus Standards in Regulatory, Procurement, and Science Documents

Bruce Levinson


Combatting External and Internal Regulatory Capture

From: RegBlog | Penn Program on Regulation

In these hyper-partisan times, one is hard-pressed to identify any areas of overlap between the left and right. One rare exception is the concept of “regulatory capture.” Tea Party Republicans, Progressive Democrats, and centrists in both parties regularly decry the evils of “crony capitalism,” though each side emphasizes different aspects of the problem. A recent forum on regulatory capture hosted by the Administrative Conference of the United States highlighted this bipartisan consensus: U.S. Senators Mike Lee (R-Utah), Elizabeth Warren (D-Mass.), and Sheldon Whitehouse (D-R.I.), as well as a range of academics from across the political spectrum, all pointed to a common malady, but they offered somewhat different sets of cures.

The Regulatory Budget Debate

From: N.Y.U. Journal of Legislation & Public Policy | Volume 19, Issue 2

Richard J. Pierce, Jr.



Both the application of NEPA by agencies and OIRA review of agency actions create delays in decision making and increase the resources that agencies must devote to each major action they take. I believe that both NEPA and OIRA application of BCA are so valuable to the agency decision-making process that those adverse effects are justified by the contributions that both make to the quality of agency decisions. As I have argued at length elsewhere, I cannot say the same about the massive adverse effects of judicial review on the time and resources that agencies must devote to the process of issuing a major rule.  I continue to support the proposal that Justice (then Professor) Breyer made in 1993: we should replace counterproductive judicial review with review by a version of OIRA that is better staffed and broader in the values it brings to the review process. [Emphasis added. Notes omitted]

Fighting Regulatory Capture in the 21st Century

From: RegBlog | Penn Program on Regulation

It is not every day that I have the opportunity to join with my colleagues Senator Sheldon Whitehouse (D-R.I.) and Senator Elizabeth Warren (D-Mass.) to advance the same cause. On paper, you might think that the three of us do not have much in common.


The modern administrative state flips this theory on its head, consolidates power, and assumes that good intentions will always overcome “the latent causes of faction.” This upending of our constitutional order was not accidental, and it did not happen overnight. Over the course of the 20th century, Congress steadily surrendered its constitutional powers and responsibilities to the executive branch. And, since that period, this trend has only accelerate

Charting Midnight Regulation Before Dawn: May Rush

From: American Action Forum



However, for economically significant measures, May of 2016 blew away the field. OIRA concluded review of 14 significant measures, 27 percent more than 2012, 50 percent more than 2008, and 114 percent more than 2004. Below are just some of the notable regulations released last month:

  1. Final “E-Cigarettes” Rule;
  2. Final Revised Fracking Standards;
  3. Nondiscrimination Rules under the ACA;
  4. Final Overtime Standards; and
  5. A Pair of Final Food Labeling Revisions.

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The President’s Budget as a Source of Agency Policy Control

From: SSRN

Eloise Pasachoff

Georgetown University Law Center

Yale Law Journal, Vol. 125, 2016, Forthcoming