The Role of Federal Judges in the Modern Administrative State

From: RegBlog


To be sure, Congress undoubtedly must play its role in restoring the proper separation of powers between the branches. To that end, as lawmakers, we must resume our role as actual, involved decision-makers over the major policy issues facing our country, rather than delegating broad, unbounded policymaking authority to federal agencies. We must also rein in federal agencies through the legislative reauthorization and appropriations processes, as well as better perform our oversight responsibilities over the regulatory state. And last but not least, we must empower courts to play a more significant role in protecting the public liberty from regulatory overreach.

Judicial Review of Regulatory Impact Analysis

From: Mercatus Center

Reeve Bull, Jerry Ellig

One of the most controversial issues in comprehensive regulatory process reform is the role of courts in reviewing the quality of the regulatory impact analysis (or other similar economic analysis) that agencies conduct to inform their regulatory decisions. Proponents of judicial review of regulatory impact analysis see it as a much-needed enforcement mechanism to ensure that agencies have an adequate factual basis for their regulatory decisions. Critics argue that judicial review of this analysis would allow judges to impose their own policy preferences on regulatory agencies and strike down necessary regulations for trivial reasons.

The Country of Law. And the Possible Revolution

Editor’s Note: The following has been translated from the original Italian. For the pre-history of OIRA and cost-benefit analysis, see here.


Francesco Delzio


Yet, in the era of complex societies one of the main objectives of the Government should be to simplify the lives of citizens. With laws written in simple language, understandable to the average citizen, based on the principle of “minimum essential” red tape. But none of these virtues belong to the Italian legislature, which is Byzantine for setting and cryptic by vocation.

The CBO-CBA Analogy, or What Wonks Could Learn from Each Other

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

by Jennifer Nou


Like the CBO Director, the OIRA Administrator is often a punching bag for both the Left and the Right. When you’re trying to maintain a reputation for nonpartisan number-crunching, you can’t please everyone. And like CBO, OIRA must also make predictions about the future amidst uncertainty: How many companies will go out of business as a result of technology-forcing requirements? How many people will no longer get lung cancer as a result of tobacco warning labels? These judgments require answers to hard questions about the right modeling assumptions, discount rates, and time horizons.

The Structure of Regulatory Revolutions

Editor’s Note: Reforming the administrative state requires reforming, i.e., broadening, the education of future administrators. See, Discussion Group: Educating Citizens on Rulemaking, Administrative Hearings and Other Administrative Procedures on the Southeastern Association of Law Schools (SEALS) draft Agenda for its annual meeting.

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

by Adam White


A Macroeconomic Study of Federal and State Automotive Regulations with Recommendations for Analysts, Regulators, and Legislators

From: Indiana University/School of Public and Environmental Affairs

Sanya Carley, Denvil Duncan, John D. Graham, Saba Siddiki, and Nikolaos Zirogiannis


This study examines how the U.S. economy is likely to be impacted by the combined effects of three automotive regulatory programs that were adopted in 2012: the U.S. Department of Transportation’s corporate average fuel economy (CAFE) standards for model years 2017-2025; the Environmental Protection Agency’s greenhouse gas (GHG) emissions standards for model years 2017-2025; and the California Air Resources Board’s Zero-Emission Vehicle (ZEV) requirements for 2018-2025.

Cost-Benefit Analysis and the Judicial Role

From: SSRN

The Economist: “beef up . . . OIRA”

From: The Economist | Grudges and kludges

Too much federal regulation has piled up in America
Republicans and Democrats have been equally culpable in adding to the rulebook


When a government agency writes a significant regulation—mostly defined as one costing more than $100m—it must usually prove that the rule’s benefits justify its costs. Its analysis goes through the Office of Information and Regulatory Affairs (OIRA), a nerdy outpost of the White House. The process is meticulous. The OECD, a club of mostly rich countries, finds that America’s analysis of regulations is among the most rigorous anywhere.


Symposium Issue: A Future Without the Administrative State? (AdLaw Bridge Series)

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

by Chris Walker

Last March the Missouri Law Review hosted a terrific symposium, organized by Professor Erin Morrow Hawley, entitled A Future Without the Administrative State? (video here). The published issue from the symposium was just posted to the Law Review‘s website. I tweeted out thread of summaries/links to each piece here. Professor Hawley’s introduction is definitely a great place to start.

Here is the table of contents, with links to each article:

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