Law Commons^™

The Internet And Citizen Participation In Rulemaking, Cary Coglianese

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Each year, regulatory agencies promulgate thousands of important rules through a process largely insulated from ordinary citizens. Many observers believe the Internet could help revolutionize the rulemaking process, allowing citizens to play a central role in the development of new government regulations. This paper expresses a contrary view. In it, I argue that existing efforts to apply information technology to rulemaking will not noticeably affect citizen participation, as these current efforts do little more than digitize the existing process without addressing the underlying obstacles to greater citizen participation. Although more innovative technologies may eventually enable the ordinary citizen to play …

E-Rulemaking: Information Technology And The Regulatory Process, Cary Coglianese

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In order to channel interest in e-rulemaking toward effective and meaningful innovations in regulatory practice, the Kennedy School of Government's Regulatory Policy Program convened two major workshops, bringing together academic experts from computer sciences, law, and public management along with key public officials involved in managing federal regulation. This paper summarizes the discussions that took place at these workshops and develops an agenda for future research on information technology and the rulemaking process. It highlights the institutional challenges associated with using information technology in the federal regulatory process and suggests that in some cases existing rulemaking practices may need to …

Licensing Health Care Professionals: Has The United States Outlived The Need For Medical Licensure?, Gregory Dolin

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With an expanding market for what is now known as "complimentary and alternative" medicine (CAM), states are increasingly facing the issue of who can and who should be allowed to practice medicine. Of necessity, this question also concerns whom patients may see to treat their ailments.

This paper will argue that the struggle to define who is and who is not licensed to practice medicine is rather fruitless and will always leave patients with less choice than they desire. Part II will review the history of licensure in the United States. Parts III and IV will focus on benefits and …

The Epa's Risky Reasoning, Cary Coglianese, Gary E. Marchant

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Regulators must rely on science to understand problems and predict the consequences of regulatory actions, but science by itself cannot justify public policy decisions. We review the Environmental Protection Agency's efforts to justify recent changes to its National Ambient Air Quality Standards (NAAQS) for ozone and particulate matter, showing how the agency was able to cloak its policy judgments under the guise of scientific objectivity. By doing so, the EPA evaded accountability for a shifting and incoherent set of policy positions that will have major implications for public health and the economy. For example, even though EPA claimed to base …

The Role Of Politics And Policy In Television Regulation, Christopher S. Yoo

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This article is a reply to Thomas Hazlett’s commentary on my article entitled, “Rethinking the Commitment to Free, Local Television.” Although politics and public choice theory represent an important approach for analyzing government actions, economic policy still exercises some influence over the regulation of television. On the one hand, we agree that the regulatory preference of free television and local programming is more a reflection of political considerations than economic policy and that the importance of promoting communities of interest over geographic communities, and the potential for new services such as Digital Audio Radio Services to benefit consumers. On the …

Enron, Watergate And The Regulation Of The Legal Profession, Arnold Rochvarg

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The most famous scandal of the twentieth century was the Watergate scandal, which most notably led to the resignation of Richard Nixon as President of the United States. The significance of Watergate, however, extends further than the resignation of Nixon. Because Watergate involved so many lawyers, it had a great impact on the regulation of the legal profession. Although the twenty-first century has just started, the strongest contender for this century's most famous scandal is the Enron scandal. Although the Enron scandal is identified mostly with misconduct by accountants and corporate officials, it too involved lawyers and has impacted on …

Building Sector-Based Consensus: A Review Of The Epa's Common Sense Initiative, Cary Coglianese, Laurie K. Allen

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In the late 1990s, the U.S. Environmental Protection Agency (EPA) conducted what the agency considered to be a "bold experiment" in regulatory reinvention, bringing representatives from six industrial sectors together with government officials and NGO representatives to forge a consensus on innovations in public policy and business practices. This paper assesses the impact of the agency's "experiment" - called the Common Sense Initiative (CSI) - in terms of the agency's goals of improving regulatory performance and technological innovation. Based on a review of CSI projects across all six sectors, the paper shows how EPA achieved, at best, quite modest accomplishments. …

Performance-Based Regulation: Prospects And Limitations In Health, Safety And Environmental Protection, Cary Coglianese, Jennifer Nash

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Regulation aims to improve the performance of individual and organizational behavior in ways that reduce social harms, whether by improving industry's environmental performance, increasing the safety of transportation systems, or reducing workplace risk. With this in mind, the phrase "performance-based regulation" might seem a bit redundant, since all regulation should aim to improve performance in ways that advance social goals. Yet regulators can direct those they govern to improve their performance in at least two basic ways. They can prescribe exactly what actions regulated entities must take to improve their performance. Or they can incorporate the regulation's goal into the …

Who Determines The Optimal Trade-Off Between Quality And Price?, Barbara Ann White

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The question of the optimal trade-off between quality and price has become increasingly important as well as complex in recent times, as the advances of modern technology permit a far more refined range of choices. These subtleties among choices allow an individual, a group, or a society to titrate more precisely degrees of quality with almost any product or service, coupled, of course, with counterbalancing price consequences.

In 2002, as Program Chair of the Antitrust Section of the Association of American Law Schools, I organized a panel entitled “Guilds at the Millennium: Antitrust and the Professions” and served as one …

Enron And The Dark Side Of Shareholder Value, William W. Bratton

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No abstract provided.

Ideas Of The Marketplace: A Guide To The 1996 Telecommunications Act,, Michael I. Meyerson

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The Telecommunications Act of 1996 represented an enormous experimental step towards deregulating the telecommunications marketplace while opening it up to competition. With an eye towards breaking up the telecommunications monopolies held by local telephone service providers, the Act created regulations that forced local carriers to share their market and their resources with other telecommunications providers. The Telecommunications Act of 1996 itself is extremely complex. This article is a "guided tour" through the major provisions of the Act.

The first step in understanding the Telecommunications Act of 1996 is to understand how the telecommunications industry operates. Part two of this article …

Empowerment Zones: Urban Revitalization Through Collaborative Enterprise, Audrey Mcfarlane

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The federal government recently designated six empowerment zones in selected urban areas as an urban revitalization demonstration program. The program is derived from the enterprise zone strategy promoted by former HUD Secretary Jack Kemp that sought to address urban poverty by encouraging business growth through deregulation and tax incentives. The Clinton administration modified the original concept and now refers to the target areas as empowerment zones. As the definitions of "enterprise" and "empower" indicate, renaming the zones reflects a significant shift in emphasis-from a focus on stimulating business enterprise through reducing regulation to one in which regulation is used to …

The Pursuit Of Pluralism: The Lessons From The New French Audiovisual Communications Law, Michael I. Meyerson

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Electronic mass communications, which have become increasingly influential over the past quarter century, have also undergone rapid and profound technological change. Constitutional governments around the world have struggled to apply their fundamental legal principals to the electronic media through sensible and balanced regulation. Perhaps the central problem in such regulation is to protect truth in the media, mainly by encouraging diversity, without allowing the regulators themselves to exert undue influence over what is disseminated over the airwaves and cables of a country's communications infrastructure. The following article traces the history of France's attempts to solve this problem in its electronic …