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Articles 1 - 17 of 17
Full-Text Articles in Law and Politics
Administrative Law In The Automated State, Cary Coglianese
Administrative Law In The Automated State, Cary Coglianese
All Faculty Scholarship
In the future, administrative agencies will rely increasingly on digital automation powered by machine learning algorithms. Can U.S. administrative law accommodate such a future? Not only might a highly automated state readily meet longstanding administrative law principles, but the responsible use of machine learning algorithms might perform even better than the status quo in terms of fulfilling administrative law’s core values of expert decision-making and democratic accountability. Algorithmic governance clearly promises more accurate, data-driven decisions. Moreover, due to their mathematical properties, algorithms might well prove to be more faithful agents of democratic institutions. Yet even if an automated state were …
Unlocking Access To Health Care: A Federalist Approach To Reforming Occupational Licensing, Gabriel Scheffler
Unlocking Access To Health Care: A Federalist Approach To Reforming Occupational Licensing, Gabriel Scheffler
All Faculty Scholarship
Several features of the existing occupational licensing system impede access to health care without providing appreciable protections for patients. Licensing restrictions prevent health care providers from offering services to the full extent of their competency, obstruct the adoption of telehealth, and deter foreign-trained providers from practicing in the United States. Scholars and policymakers have proposed a number of reforms to this system over the years, but these proposals have had a limited impact for political and institutional reasons.
Still, there are grounds for optimism. In recent years, the federal government has taken a range of initial steps to reform licensing …
Progressive Antitrust, Herbert J. Hovenkamp
Progressive Antitrust, Herbert J. Hovenkamp
All Faculty Scholarship
Several American political candidates and administrations have both run and served under the “progressive” banner for more than a century, right through the 2016 election season. For the most part these have pursued interventionist antitrust policies, reflecting a belief that markets are fragile and in need of repair, that certain interest groups require greater protection, or in some cases that antitrust policy is an extended arm of regulation. This paper argues that most of this progressive antitrust policy was misconceived, including that reflected in the 2016 antitrust plank of the Democratic Party. The progressive state is best served by a …
What Congress's Repeal Efforts Can Teach Us About Regulatory Reform, Cary Coglianese, Gabriel Scheffler
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 …
Risk And Regulatory Calibration: Wto Compliance Review Of The U.S. Dolphin-Safe Tuna Labeling Regime, Cary Coglianese, André Sapir
Risk And Regulatory Calibration: Wto Compliance Review Of The U.S. Dolphin-Safe Tuna Labeling Regime, Cary Coglianese, André Sapir
All Faculty Scholarship
In a series of recent disputes arising under the TBT Agreement, the Appellate Body has interpreted Article 2.1 to provide that discriminatory and trade-distortive regulation could be permissible if based upon a “legitimate regulatory distinction.” In its recent compliance decision in the US-Tuna II dispute, the AB reaffirmed its view that regulatory distinctions embedded in the U.S. dolphin-safe tuna labeling regime were not legitimate because they were not sufficiently calibrated to the risks to dolphins associated with different tuna fishing conditions. This paper analyzes the AB’s application of the notion of risk-based regulation in the US-Tuna II dispute and finds …
The Challenge Of Regulatory Excellence, Cary Coglianese
The Challenge Of Regulatory Excellence, Cary Coglianese
All Faculty Scholarship
Regulation is a high-stakes enterprise marked by tremendous challenges and relentless public pressure. Regulators are expected to protect the public from harms associated with economic activity and technological change without unduly impeding economic growth or efficiency. Regulators today also face new demands, such as adapting to rapidly changing and complex financial instruments, the emergence of the sharing economy, and the potential hazards of synthetic biology and other innovations. Faced with these challenges, regulators need a lodestar for what constitutes high-quality regulation and guidance on how to improve their organizations’ performance. In the book Achieving Regulatory Excellence, leading regulatory experts …
Administrative Law: The U.S. And Beyond, Cary Coglianese
Administrative Law: The U.S. And Beyond, Cary Coglianese
All Faculty Scholarship
Administrative law constrains and directs the behavior of officials in the many governmental bodies responsible for implementing legislation and handling governance responsibilities on a daily basis. This field of law consists of procedures for decision making by these administrative bodies, including rules about transparency and public participation. It also encompasses oversight practices provided by legislatures, courts, and elected executives. The way that administrative law affects the behavior of government officials holds important implications for the fulfillment of democratic principles as well as effective governance in society. This paper highlights salient political theory and legal issues fundamental to the U.S. administrative …
Human Survival, Risk, And Law: Considering Risk Filters To Replace Cost-Benefit Analysis, John William Draper
Human Survival, Risk, And Law: Considering Risk Filters To Replace Cost-Benefit Analysis, John William Draper
Librarian Scholarship at Penn Law
Selfish utilitarianism, neo-classical economics, the directive of short-term income maximization, and the decision tool of cost-benefit analysis fail to protect our species from the significant risks of too much consumption, pollution, or population. For a longer-term survival, humanity needs to employ more than cost-justified precaution.
This article argues that, at the global level, and by extension at all levels of government, we need to replace neo-classical economics with filters for safety and feasibility to regulate against significant risk. For significant risks, especially those that are irreversible, we need decision tools that will protect humanity at all scales. This article describes …
Agenda-Setting In The Regulatory State: Theory And Evidence, Cary Coglianese, Daniel E. Walters
Agenda-Setting In The Regulatory State: Theory And Evidence, Cary Coglianese, Daniel E. Walters
All Faculty Scholarship
Government officials who run administrative agencies must make countless decisions every day about what issues and work to prioritize. These agenda-setting decisions hold enormous implications for the shape of law and public policy, but they have received remarkably little attention by either administrative law scholars or social scientists who study the bureaucracy. Existing research offers few insights about the institutions, norms, and inputs that shape and constrain agency discretion over their agendas or about the strategies that officials employ in choosing to elevate certain issues while putting others on the back burner. In this article, we advance the study of …
Introduction To The Workplace Constitution From The New Deal To The New Right, Sophia Z. Lee
Introduction To The Workplace Constitution From The New Deal To The New Right, Sophia Z. Lee
All Faculty Scholarship
Today, most American workers do not have constitutional rights on the job. As The Workplace Constitution shows, this outcome was far from inevitable. Instead, American workers have a long history of fighting for such rights. Beginning in the 1930s, civil rights advocates sought constitutional protections against racial discrimination by employers and unions. At the same time, a conservative right-to-work movement argued that the Constitution protected workers from having to join or support unions. Those two movements, with their shared aim of extending constitutional protections to American workers, were a potentially powerful combination. But they sought to use those protections to …
Private Enforcement Of Statutory And Administrative Law In The United States (And Other Common Law Countries), Stephen B. Burbank, Sean Farhang, Herbert M. Kritzer
Private Enforcement Of Statutory And Administrative Law In The United States (And Other Common Law Countries), Stephen B. Burbank, Sean Farhang, Herbert M. Kritzer
All Faculty Scholarship
Our aim in this paper, which was prepared for an international conference on comparative procedural law to be held in July 2011, is to advance understanding of private enforcement of statutory and administrative law in the United States, and, to the extent supported by the information that colleagues abroad have provided, of comparable phenomena in other common law countries. Seeking to raise questions that will be useful to those who are concerned with regulatory design, we briefly discuss aspects of American culture, history, and political institutions that reasonably can be thought to have contributed to the growth and subsequent development …
Private Enforcement, Stephen B. Burbank, Sean Farhang, Herbert Kritzer
Private Enforcement, Stephen B. Burbank, Sean Farhang, Herbert Kritzer
All Faculty Scholarship
Our aim in this Article is to advance understanding of private enforcement of statutory and administrative law in the United States and to raise questions that will be useful to those who are concerned with regulatory design in other countries. To that end, we briefly discuss aspects of American culture, history, and political institutions that reasonably can be thought to have contributed to the growth and subsequent development of private enforcement. We also set forth key elements of the general legal landscape in which decisions about private enforcement are made, aspects of which should be central to the choice of …
Much Ado About Nothing?, Cary Coglianese
Much Ado About Nothing?, Cary Coglianese
All Faculty Scholarship
Policy scholars and decision makers should be careful before concluding that President Bush's recent Executive Order 13422 will result in "paralysis by analysis." That lament has been heard about other changes to rule making procedures over the last seven decades, yet steady increases in the cost and volume of federal regulations during that time period clearly indicate that paralysis has yet to set in. Administrative procedures are embedded within a complex web of politics, institutions, and organizational behavior. Within that web, procedures are but one factor influencing government agencies.
Weak Democracy, Strong Information: The Role Of Information Technology In The Rulemaking Process, Cary Coglianese
Weak Democracy, Strong Information: The Role Of Information Technology In The Rulemaking Process, Cary Coglianese
All Faculty Scholarship
Techno-optimists advocate the application of information technology to the rulemaking process as a means of advancing strong democracy -- that is, direct, broad-based citizen involvement in regulatory policy making. In this paper, I show that such optimism is unfounded given the obstacles to meaningful citizen deliberation posed by the impenetrability of current e-rulemaking developments, the prevailing level of citizen disengagement from politics and policy making more generally, and most citizens’ lack of the requisite technical information about and understanding of the issues at stake in regulatory decision making. As such, a more realistic goal for the application of new technology …
The Internet And Citizen Participation In Rulemaking, Cary Coglianese
The Internet And Citizen Participation In Rulemaking, Cary Coglianese
All Faculty Scholarship
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
E-Rulemaking: Information Technology And The Regulatory Process, Cary Coglianese
All Faculty Scholarship
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 …
The Role Of Politics And Policy In Television Regulation, Christopher S. Yoo
The Role Of Politics And Policy In Television Regulation, Christopher S. Yoo
All Faculty Scholarship
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 …