Law Commons^™

Assessing Visions Of Democracy In Regulatory Policymaking, Shoba Sivaprasad Wadhia, Christopher J. Walker

Articles

Motivated in part by Congress’s failure to legislate, presidents in recent years seem to have turned even more to the regulatory process to make major policy. It is perhaps no coincidence that the feld of administrative law has similarly seen a resurgence of scholarship extolling the virtues of democratic accountability in the modern administrative state. Some scholars have even argued that bureaucracy is as much as if not more democratically legitimate than Congress, either in the aggregative or deliberative sense, or both.

An Unfinished Dialogue: Congress, The Judiciary, And The Rules For Federal Judicial Misconduct Proceedings, Arthur D. Hellman

Articles

Federal judges can be impeached and removed from office for “high crimes and misdemeanors,” but what can be done to investigate and remedy less serious misconduct? Congress gave its answer 40 years ago when it passed the Judicial Conduct and Disability Act of 1980. The Act emerged from a series of complex interactions between Congress and the judiciary that could hardly be replicated today. Initially there was strong support, particularly in the Senate, for a centralized, “strictly adjudicatory” system, including a provision for removal of judges without impeachment. Over the course of several years, however, the judiciary persuaded Congress to …

Improving Regulatory Analysis At Independent Agencies, Cary Coglianese

All Faculty Scholarship

Each year, independent regulatory agencies—such as the Federal Communications Commission, Nuclear Regulatory Commission, and Securities and Exchange Commission—issue highly consequential regulations. When they issue their regulations, however, they do not have to meet the same requirements for analysis that apply to other agencies. Consequently, courts, policymakers, and scholars have voiced serious reservations about a general lack of high-quality prospective analysis of new regulations at independent agencies. These agencies’ track records with retrospective analysis of their existing regulations raise similar concerns. In this article, I approach the quality of regulatory analysis at independent agencies as a policy problem, assessing the current …

What Congress's Repeal Efforts Can Teach Us About Regulatory Reform, Cary Coglianese, Gabriel Scheffler

All Faculty Scholarship

Major legislative actions during the early part of the 115th Congress have undermined the central argument for regulatory reform measures such as the REINS Act, a bill that would require congressional approval of all new major regulations. Proponents of the REINS Act argue that it would make the federal regulatory system more democratic by shifting responsibility for regulatory decisions away from unelected bureaucrats and toward the people’s representatives in Congress. But separate legislative actions in the opening of the 115th Congress only call this argument into question. Congress’s most significant initiatives during this period — its derailed attempts to repeal …

Barriers To Participatory Erulemaking Platform Adoption: Lessons Learned From Regulationroom, Mary J. Newhart, Joshua D. Brooks

Cornell e-Rulemaking Initiative Publications

Rulemaking, the process through which United States (U.S.) federal government agencies develop major health, safety and economic regulations, was an early target of electronic government (e-government) efforts. Because it was an established decision-making process that had substantial formal requirements of transparency, public participation and responsiveness it seemed a perfect target for technology-supported participatory policymaking. It was believed that new technologies could transform rulemaking, increasing its democratic legitimacy and improving its policy outcomes by broadening the range of participating individuals and groups (Brandon and Carlitz, 2003; Coglianese, 2004; Noveck, 2004). Despite the promise of a more deliberative and democratic process, rulemaking …

Class Actions And The Counterrevolution Against Federal Litigation, Stephen B. Burbank, Sean Farhang

All Faculty Scholarship

In this article we situate consideration of class actions in a framework, and fortify it with data, that we have developed as part of a larger project, the goal of which is to assess the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we have documented how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for …

The Subterranean Counterrevolution: The Supreme Court, The Media, And Litigation Retrenchment, Stephen B. Burbank, Sean Farhang

All Faculty Scholarship

This article is part of a larger project to study the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we show how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for private enforcement. An institutional perspective helps to explain the outcome we document: the long-term erosion of the infrastructure of private enforcement as a result of …

The Problem With Words: Plain Language And Public Participation In Rulemaking, Cynthia R. Farina, Mary J. Newhart, Cheryl Blake

Cornell Law Faculty Publications

This Article, part of the special issue commemorating the fiftieth anniversary of the Administrative Conference of the United States (“ACUS”), situates ACUS’s recommendations for improving public rulemaking participation in the context of the federal “plain language” movement. The connection between broader, better public participation and more comprehensible rulemaking materials seems obvious, and ACUS recommendations have recognized this connection for almost half a century. Remarkably, though, the series of presidential and statutory plain-language directives on this topic have not even mentioned the relationship of comprehensibility to participation until very recently. In 2012, the Office of Information and Regulatory Affairs (“OIRA”) issued …

The Value Of Words: Narrative As Evidence In Policymaking, Dmitry Epstein, Josiah Heidt, Cynthia R. Farina

Cornell Law Faculty Publications

Policymakers today rely primarily on statistical, financial, and other forms of technical data as their basis for decision-making. Yet, there is a potentially underestimated value in substantive reflections of the members of the public who will be affected by a particular piece of regulation. We discuss the value of narratives as input in the policy making process, based on our experience with Regulation Room–a product of an interdisciplinary initiative using innovative web technologies in real-time online experimentation. We describe professional policymakers and professional commenters as a community of practice that has limited shared repertoire with the lay members of the …

Rulemaking 2.0: Understanding And Getting Better Public Participation, Cynthia R. Farina, Mary J. Newhart

Cornell e-Rulemaking Initiative Publications

More than a decade after the launch of Regulations.gov, the government-wide federal online rulemaking portal, and nearly four years since the Obama Administration directed agencies to use “innovative tools and practices that create new and easier methods for public engagement,” there are still more questions than answers about what value social media and other Web 2 .0 technologies can bring to rulemaking–and about how agencies can realize that value.

This report, commissioned by the IBM Center for the Business of Government, begins to provide those answers. Drawing on insights from a number of disciplines and on three years of actual …

Slides: Overview Of Colorado Aquifer Systems, Christopher J. Sanchez

Monitoring and Protecting Groundwater During Oil and Gas Development (November 26)

Presenter: Christopher J. Sanchez, P.G., BBA Water Consultants, Bishop-Brogden Associates, Inc.

28 slides

Agenda: Monitoring And Protecting Groundwater During Oil And Gas Development, University Of Colorado Boulder. Natural Resources Law Center. Intermountain Oil And Gas Bmp Project, Colorado Water And Energy Research Center

Monitoring and Protecting Groundwater During Oil and Gas Development (November 26)

This workshop is cosponsored by the Intermountain Oil and Gas BMP Project and the Colorado Water and Energy Research Center, with financial support from the Environmentally Friendly Drilling Project and the CU-Boulder Outreach Committee.

The Colorado Oil and Gas Conservation Commission (COGCC) recently initiated a rule making process to develop new, statewide regulations for baseline sampling and monitoring of groundwater near new oil and gas wells. COGCC’s first rule making hearing was held November 14; the rule is expected to be finalized December 10. This workshop will discuss oil and gas development procedures that can impact groundwater, the current rules …

Slides: Planning Tools: Wildlife Mitigation Plan (Wmp), Comprehensive Drilling Plan (Cdp), Geographic Area Plan (Gap), Ginny Brannon

Best Management Practices (BMPs): What? How? And Why? (May 26)

Presenter: Ginny Brannon, Colorado Department of Natural Resources

7 slides

Litigation And Democracy: Restoring A Realistic Prospect Of Trial, Stephen B. Burbank, Stephen N. Subrin

All Faculty Scholarship

In this essay we review some of the evidence confirming, and some of the reasons underlying, the phenomenon of the vanishing trial in federal civil cases and examine some of the costs of that phenomenon for democratic values, including in particular democratic values represented by the right to a jury trial under the Seventh Amendment. We discuss the Supreme Court’s recent pleading decisions in Twombly and Iqbal as examples of procedural attacks on democracy in four dimensions: (1) they put the right to jury trial in jeopardy; (2) they undercut the effectiveness of congressional statutes designed to compensate citizens for …

Slides: Second Thoughts About The Antiquities Act: Does The Process For Public Land Decisionmaking Have An Ethical Dimension?, James R. Rasband

The Past, Present, and Future of Our Public Lands: Celebrating the 40th Anniversary of the Public Land Law Review Commission’s Report, One Third of the Nation’s Land (Martz Summer Conference, June 2-4)

Presenter: James R. Rasband, Dean of the J. Reuben Clark Law School, Brigham Young University (Provo, UT)

32 slides

The Rhetoric And Reality Of Regulatory Reform, Cary Coglianese

All Faculty Scholarship

In January 2007, President George W. Bush stirred up widespread controversy by issuing amendments to an executive order on regulatory review adopted initially by President Clinton. The Bush amendments variously require agencies to issue written regulatory problem statements, assign gate-keeping responsibilities to Regulatory Policy Officers within each agency, and undertake analytic reviews before adopting certain kinds of guidance documents. Both legal scholars and policy advocates charge that the Bush amendments place significant new burdens on administrative agencies and will delay the issuance of important new regulatory policies. This paper challenges the rhetorical claims of obstructionism that have emerged in response …

Slides: The Roadless Rules And The Roles Of States And Communities, Sharon Friedman

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: Sharon Friedman, Director of Planning, USDA Forest Service, Rocky Mountain Region

13 slides