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


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


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


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



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.

Make Benefit-Cost Analysis Meaningful

From: The Regulatory Review

Regulatory benefit-cost analysis should account for people’s welfare, not just empirical data.


In more recent years, there is another area where theory has taken a backseat to empirical measurement: namely, the theory behind benefit-cost analysis (BCA). BCA intends to predict how regulations and other public policies impact society for better or worse. Conspicuously missing from BCA, however, is the necessary theory connecting whatever BCA is measuring to the well-being of actual people.