The Annual ABA Section on Administrative Law Regulatory Summit

The Editor attended one of the most impressive of all annual events ever sponsored by the ABA Section on Administrative Law: The 2018 Administrative Law Conference: November 1-2, 2018 at the Washington Convention Center, Washington, DC.

The attendance was record breaking as was the quality of the topics addressed and the attendant presentations. The agenda addressed the pace-setting issues of the day.  The discussants were well prepared and included those of differing views.  A common refrain echoed throughout the summit was that the agenda was so enticing that it was impossible for a particular attendee to attend two panels at the same time.

If you could not attend here is the Agenda of discussions you missed. Furthermore the impact of an ABA Ad Law Section conference does not end with the final presentation at the conference; instead it is the incubator for ongoing discussions of concerns critical to the proper functioning of the administrative state.

To that end consider for example that a retrospective consideration of the totality of the presentations at the conference leads some to conclude that notwithstanding the many worthwhile proposals to improve the regulatory process the regulators in attendance will continue to have, in the absence of a macro constraint on incremental regulatory expenditures,  the unilateral ability to impose  an unlimited de facto tax on every living American even if the aforementioned proposals were implemented. Accordingly a public debate should ensue as to whether such a capability should continue unabated if and when the existing regulatory budget is revisited. Such a debate is relevant because notwithstanding the fact that only those regulations whose benefits exceed their costs are promulgated the majority of the benefits do not accrue to those paying the costs.  Therefore the nation is confronted with either a potential shortage or exceeding high opportunity costs of capital to finance the totality of regulations whose benefits exceed their costs.

Whether or not to institute a ceiling on these de facto taxes is a public policy issue that needs to be addressed when, and preferably before, the existing constraint on regulatory expenditures expires.  In a nutshell presently there is a constraint on the incremental costs that regulators can impose on the public; should this constraint, or a variant thereto, continue for the foreseeable future?  The particular mechanism to do so is also open for debate.

Regulatory practitioners and members of the academy have a wide range of significant administrative law issues before them but it is likely that the aforementioned issue will rank high with the general public.


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