A Lamentation on the Status of Guidance Documents

Statement of the Issue

Recently there has been a flurry of concern regarding regulatory guidance documents notwithstanding their multi-decade review by experts in the field. In response to the release and resultant public discussion of the aforementioned documents, both inside and outside of government, CRE has received and has responded to a number of comments from its readers, most of which are captured in the statements which follow.

Benefit- Cost Analysis Now One Component of a Regulatory Budget

Heretofore the demonstration that the benefits of a proposed rule exceeded its costs was the only ticket needed to have it promulgated as a final rule.

With the advent of regulatory budgeting the demonstration of positive net benefits for a proposed rule is a necessary but not sufficient condition for its promulgation as a final rule.   Listen at minute 3:30 of a ten minute video presentation on this concept. The background paper is here.

A  Statutory Revision of the Information Quality Act: A Bedrock Requirement for an Effective Artificial Intelligence Program

Dr. Michael Stumborg, a principal scientist at the Center for Naval Analysis, has published a paper in which he concludes:

Congress should make the data quality provisions of the Information Quality Act applicable to all federal government data, not just publicly disseminated data. The Office of Management and Budget guidelines should provide clear, binding, and quantifiable definitions of “utility,” “objectivity,” and “integrity.” Compliance then becomes measureable, and thus, enforceable.

Congress should also define the terms “influential scientific information,” and “affected parties” to make congressional intentions clear, thereby preventing circumvention of the law by discretionary interpretation.

A Miller Analogies Question For Attorneys and Economists

Here is an easy Miller Analogy question for attorneys and economists: judicial review is to attorneys  as ____ is to economists?

Answer:  benefit-cost analysis

Nonetheless the answer is more complex because attorneys tend to emphasize judicial review and economists tend to emphasize benefit-cost analysis when it comes to both managing the administrative state and in challenging it.

The Different Worlds of Academicians and Practitioners

The influence of academicians in our society is underestimated; through their constant flow of publications they establish the administrative record on issues of public policy. Articles in the press come and go but journals are around forever.

Academicians teach future Presidents, Members of Congress, entrepreneurs, judges and their staff as well as future academicians, reporters and other opinion leaders. That said, the administrative record established by academicians could, in some instances, lack completeness. If the resultant void is be closed it is the responsibility of practitioners to do so.


Academicians survive because they publish.

Did the Quality of  Life Review Penetrate the Bureaucracy ?

The Quality of Life Review (QLR) was the term given to the first centralized regulatory review process administered by OMB. It predated OIRA review by a decade and was utilized by the Nixon and Ford Administrations.

The Quality of Life Review process differed significantly from the one currently in use by OIRA:

(1) Although its two primary components, OMB review and agency analysis of the benefits and cost of rules are the building blocks of all future Executive Orders on centralized regulatory review, the QLR was conducted by the “budget side” of OMB not a standalone office (OIRA) dedicated exclusively to implementing centralized regulatory review.

Has the Reign of the Economist Ended?

                          A Book Review by Professor James Kwak


                            The Economists’ Hour                            

               False Prophets, Free Markets, and the Fracture of Society

By Binyamin Appelbaum

Review Book

The Preservation of Centralized Regulatory Review

Centralized Regulatory Review conducted by the Office of Information and Regulatory Affairs(OIRA) in the Office of Management and Budget has been in existence half  a century.  Periodically either an incumbent or an incoming Administration examines centralized regulatory review with the objective of ensuring that the existing process complies with recent advances in science, law and economics.

A recently published paper describes a review of the aforementioned process and has made the following recommendations. A video of the ten minute presentation begins at  minute 3:30.

The Gigantic Distance Between Law, Economics and Political Science.

Talking about silo mentalities, consider the ongoing debate regarding the implementation of a regulatory budget. The legal profession complains that a regulatory  budget gives inadequate attention to benefits; practitioners in the economic profession emphasize the improvement of benefit-cost analysis of individual regulations all the while the political science profession prepares holistic papers focused on  the theory of delegation central to the entire debate but never translates them into anything of use by the other two professions.   See this paper Delegation 

FINRA:  A Prototype for US Regulation of the Social Media

Administrative Law Section of the American Bar Association Teleconference on Regulation of the Social Media

July 24, 2019

N.B.  The day of the Teleconference the SEC and the FTC announced respectively fines of $100 million and  $5 billion against the social media.

Editors Note:   We appreciate the many requests we have received for additional information on the presentations made at this event but at this time we are not in a position to prepare an in-depth analysis of the statements made by the panelists. However we have summarized below a particular topic addressed by the panelists.