Law Commons^™

Solving The Congressional Review Act’S Conundrum, Cary Coglianese

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Congress routinely enacts statutes that require federal agencies to adopt specific regulations. When Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010, for example, it mandated that the Securities and Exchange Commission (SEC) adopt an anti-corruption regulation requiring energy companies to disclose payments they make to foreign governments. Although the Dodd-Frank Act specifically required the SEC to adopt this disclosure requirement, the agency’s eventual regulation was also, like other administrative rules, subject to disapproval by Congress under a process outlined in a separate statute known as the Congressional Review Act (CRA).

After the SEC issued its …

Moving Toward Personalized Law, Cary Coglianese

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Rules operate as a tool of governance by making generalizations, thereby cutting down on government officials’ need to make individual determinations. But because they are generalizations, rules can result in inefficient or perverse outcomes due to their over- and under-inclusiveness. With the aid of advances in machine-learning algorithms, however, it is becoming increasingly possible to imagine governments shifting away from a predominant reliance on general rules and instead moving toward increased reliance on precise individual determinations—or on “personalized law,” to use the term Omri Ben-Shahar and Ariel Porat use in the title of their 2021 book. Among the various technological, …

Algorithm Vs. Algorithm, Cary Coglianese, Alicia Lai

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Critics raise alarm bells about governmental use of digital algorithms, charging that they are too complex, inscrutable, and prone to bias. A realistic assessment of digital algorithms, though, must acknowledge that government is already driven by algorithms of arguably greater complexity and potential for abuse: the algorithms implicit in human decision-making. The human brain operates algorithmically through complex neural networks. And when humans make collective decisions, they operate via algorithms too—those reflected in legislative, judicial, and administrative processes. Yet these human algorithms undeniably fail and are far from transparent. On an individual level, human decision-making suffers from memory limitations, fatigue, …

Regulating New Tech: Problems, Pathways, And People, Cary Coglianese

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New technologies bring with them many promises, but also a series of new problems. Even though these problems are new, they are not unlike the types of problems that regulators have long addressed in other contexts. The lessons from regulation in the past can thus guide regulatory efforts today. Regulators must focus on understanding the problems they seek to address and the causal pathways that lead to these problems. Then they must undertake efforts to shape the behavior of those in industry so that private sector managers focus on their technologies’ problems and take actions to interrupt the causal pathways. …

The Deregulation Deception, Cary Coglianese, Natasha Sarin, Stuart Shapiro

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President Donald Trump and members of his Administration repeatedly asserted that they had delivered substantial deregulation that fueled positive trends in the U.S. economy prior to the COVID pandemic. Drawing on an original analysis of data on federal regulation from across the Trump Administration’s four years, we show that the Trump Administration actually accomplished much less by way of deregulation than it repeatedly claimed—and much less than many commentators and scholars have believed. In addition, and also contrary to the Administration’s claims, overall economic trends in the pre-pandemic Trump years tended simply to follow economic trends that began years earlier. …

Unrules, Cary Coglianese, Gabriel Scheffler, Daniel Walters

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At the center of contemporary debates over public law lies administrative agencies’ discretion to impose rules. Yet, for every one of these rules, there are also unrules nearby. Often overlooked and sometimes barely visible, unrules are the decisions that regulators make to lift or limit the scope of a regulatory obligation, for instance through waivers, exemptions, and exceptions. In some cases, unrules enable regulators to reduce burdens on regulated entities or to conserve valuable government resources in ways that make law more efficient. However, too much discretion to create unrules can facilitate undue business influence over the law, weaken regulatory …

Bankruptcy For Banks: A Tribute (And Little Plea) To Jay Westbrook, David A. Skeel Jr.

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In this brief essay, to be included in a book celebrating the work of Jay Westbrook, I begin by surveying Jay’s wide-ranging contributions to bankruptcy scholarship. Jay’s functional analysis has had a profound effect on scholars’ understanding of key issues in domestic bankruptcy law, and Jay has been the leading scholarly figure on cross-border insolvency. After surveying Jay’s influence, I turn to the topic at hand: a proposed reform that would facilitate the use of bankruptcy to resolve the financial distress of large financial institutions. Jay has been a strong critic of this legislation, arguing that financial institutions need to …

Ai In Adjudication And Administration, Cary Coglianese, Lavi M. Ben Dor

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The use of artificial intelligence has expanded rapidly in recent years across many aspects of the economy. For federal, state, and local governments in the United States, interest in artificial intelligence has manifested in the use of a series of digital tools, including the occasional deployment of machine learning, to aid in the performance of a variety of governmental functions. In this paper, we canvas the current uses of such digital tools and machine-learning technologies by the judiciary and administrative agencies in the United States. Although we have yet to see fully automated decision-making find its way into either adjudication …

Administrative Law In The Automated State, Cary Coglianese

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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 …

Litigating Epa Rules: A Fifty-Year Retrospective Of Environmental Rulemaking In The Courts, Cary Coglianese, Daniel E. Walters

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Over the last fifty years, the U.S. Environmental Protection Agency (EPA) has found itself repeatedly defending its regulations before federal judges. The agency’s engagement with the federal judiciary has resulted in prominent Supreme Court decisions, such as Chevron v. NRDC and Massachusetts v. EPA, which have left a lasting imprint on federal administrative law. Such prominent litigation has also fostered, for many observers, a longstanding impression of an agency besieged by litigation. In particular, many lawyers and scholars have long believed that unhappy businesses or environmental groups challenge nearly every EPA rule in court. Although some empirical studies have …

Regulation Of Algorithmic Tools In The United States, Christopher S. Yoo, Alicia Lai

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Policymakers in the United States have just begun to address regulation of artificial intelligence technologies in recent years, gaining momentum through calls for additional research funding, piece-meal guidance, proposals, and legislation at all levels of government. This Article provides an overview of high-level federal initiatives for general artificial intelligence (AI) applications set forth by the U.S. president and responding agencies, early indications from the incoming Biden Administration, targeted federal initiatives for sector-specific AI applications, pending federal legislative proposals, and state and local initiatives. The regulation of the algorithmic ecosystem will continue to evolve as the United States continues to search …

Management-Based Regulation, Cary Coglianese, Shana M. Starobin

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Environmental regulators have embraced management-based regulation as a flexible instrument for addressing a range of important problems often poorly addressed by other types of regulations. Under management-based regulation, regulated firms must engage in management-related activities oriented toward addressing targeted problems—such as planning and analysis to mitigate risk and the implementation of internal management systems geared towards continuous improvement. In contrast with more restrictive forms of regulation which can impose one-size-fits-all solutions, management-based regulation offers firms greater operational choice about how to solve regulatory problems, leveraging firms’ internal informational advantage to innovate and search for alternative measures to achieve the intended …

Illuminating Regulatory Guidance, Cary Coglianese

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Administrative agencies issue many guidance documents each year in an effort to provide clarity and direction to the public about important programs, policies, and rules. But these guidance documents are only helpful to the public if they can be readily found by those who they will benefit. Unfortunately, too many agency guidance documents are inaccessible, reaching the point where some observers even worry that guidance has become a form of regulatory “dark matter.” This article identifies a series of measures for agencies to take to bring their guidance documents better into the light. It begins by explaining why, unlike the …

Capturing Regulatory Agendas?: An Empirical Study Of Industry Use Of Rulemaking Petitions, Daniel Walters

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A great deal of skepticism toward administrative agencies stems from the widespread perception that they excessively or even exclusively cater to business interests. From the political right comes the accusation that business interests use regulation to erect barriers to entry that protect profits and stifle competition. From the political left comes the claim that business interests use secretive interactions with agencies to erode and negate beneficial regulatory programs. Regulatory “capture” theory elevates many of these claims to the status of economic law. Despite growing skepticism about capture theory in academic circles, empirical studies of business influence and capture return ambiguous …

Unlocking Access To Health Care: A Federalist Approach To Reforming Occupational Licensing, Gabriel Scheffler

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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 …

Transparency And Algorithmic Governance, Cary Coglianese, David Lehr

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Machine-learning algorithms are improving and automating important functions in medicine, transportation, and business. Government officials have also started to take notice of the accuracy and speed that such algorithms provide, increasingly relying on them to aid with consequential public-sector functions, including tax administration, regulatory oversight, and benefits administration. Despite machine-learning algorithms’ superior predictive power over conventional analytic tools, algorithmic forecasts are difficult to understand and explain. Machine learning’s “black-box” nature has thus raised concern: Can algorithmic governance be squared with legal principles of governmental transparency? We analyze this question and conclude that machine-learning algorithms’ relative inscrutability does not pose a …

Teaching Voluntary Codes And Standards To Law Students, Cary Coglianese, Caroline Raschbaum

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Voluntary codes and standards issued by nongovernmental institutions affect many aspects of legal work and daily life. Although these codes and standards are voluntary—that is, they are not directly enforceable through civil or criminal penalties—they can and do often shape behavior. Codes and standards inform business practices and product designs. They affect the provisions of contracts and the licensing of patents. And, among still other uses, they affect the handling of evidence in criminal law matters.

More broadly, voluntary codes and standards can play a role similar to, or even take the place of, government regulations. Regulators regularly defer to …

The Operational And Administrative Militaries, Mark P. Nevitt

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This Article offers a new way of thinking about the military. The U.S. military’s existing legal architecture arose from tragedy: in response to operational military failures in Vietnam, the 1980 failed Iranian hostage rescue attempt and other military misadventures, Congress revamped the Department of Defense (DoD)’s organization. The resulting law, the Goldwater-Nichols Act, formed two militaries within the DoD that endure to this day. These two militaries – the operational military and the administrative military – were once opaque to the outside observer but have emerged from the shadows in light of recent conflicts. The operational military remains the focus …

Preserving Life By Ranking Rights, John William Draper

Librarian Scholarship at Penn Law

Border walls, abortion, and the death penalty are the current battlegrounds of the right to life. We will visit each topic and more in this paper, as we consider ranking groups of constitutional rights.

The enumerated rights of the Due Process Clauses of the Fifth and Fourteenth Amendments—life, liberty, and property—merit special treatment. They have a deeper and richer history that involves ranking. Ranking life in lexical priority over liberty and property rights protects life first and maximizes safe liberty and property rights in the absence of a significant risk to life. This is not new law; aspects of it …

Improving Regulatory Analysis At Independent Agencies, Cary Coglianese

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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 …

Common Carriage’S Domain, Christopher S. Yoo

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The judicial decision invalidating the Federal Communications Commission's first Open Internet Order has led advocates to embrace common carriage as the legal basis for network neutrality. In so doing, network neutrality proponents have overlooked the academic literature on common carriage as well as lessons from its implementation history. This Essay distills these learnings into five factors that play a key role in promoting common carriage's success: (1) commodity products, (2) simple interfaces, (3) stability and uniformity in the transmission technology, (4) full deployment of the transmission network, and (5) stable demand and market shares. Applying this framework to the Internet …

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

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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 …

The Limits Of Performance-Based Regulation, Cary Coglianese

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Performance-based regulation is widely heralded as a superior approach to regulation. Rather than specifying the actions regulated entities must take, performance-based regulation instead requires the attainment of outcomes and gives flexibility in how to meet them. Despite nearly universal acclaim for performance-based regulation, the reasons supporting its use remain largely theoretical and conjectural. Owing in part to a lack of a clear conceptual taxonomy, researchers have yet to produce much empirical research documenting the strengths and weaknesses of performance-based regulation. In this Article, I provide a much-needed conceptual framework for understanding and assessing performance-based regulation. After defining performance-based regulation and …

From Treaties To International Commitments: The Changing Landscape Of Foreign Relations Law, Jean Galbraith

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Sometimes the United States makes international commitments in the manner set forth in the Treaty Clause. But far more often it uses congressional-executive agreements, sole executive agreements, and soft law commitments. Foreign relations law scholars typically approach these other processes from the perspective of constitutional law, seeking to determine the extent to which they are constitutionally permissible. In contrast, this Article situates the myriad ways in which the United States enters into international commitments as the product not only of constitutional law, but also of international law and administrative law. Drawing on all three strands of law provides a rich …

Appraising The Progressive State, Herbert J. Hovenkamp

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Since it origins in the late nineteenth century, the most salient characteristics of the progressive state have been marginalism in economics, greatly increased use of scientific theory and data in policy making, a commitment to broad participation in both economic and political markets, and a belief that resources are best moved through society by many institutions in addition to traditional markets.. These values have served to make progressive policy less stable than classical and other more laissez faire alternatives. However, the progressive state has also performed better than alternatives by every economic measure. One of the progressive state’s biggest vulnerabilities …

The Challenge Of Regulatory Excellence, Cary Coglianese

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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 …

A Study Of Social Security Disability Litigation In The Federal Courts, Jonah B. Gelbach, David Marcus

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A person who has sought and failed to obtain disability benefits from the Social Security Administration (“the agency”) can appeal the agency’s decision to a federal district court. In 2015, nearly 20,000 such appeals were filed, comprising a significant part of the federal courts’ civil docket. Even though claims pass through multiple layers of internal agency review, many of them return from the federal courts for even more adjudication. Also, a claimant’s experience in the federal courts differs considerably from district to district around the country. District judges in Brooklyn decide these cases pursuant to one set of procedural rules …

Capturing Regulatory Reality: Stigler’S The Theory Of Economic Regulation, Christopher Carrigan, Cary Coglianese

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This paper offers a retrospective assessment of economist George Stigler’s classic article, The Theory of Economic Regulation. Stigler argued that regulation is a product that, just like any other product, is produced in a market, and that it can be acquired from the governmental “marketplace” by business firms to serve their private interests and create barriers to entry for potential competitors. He challenged the idea that regulation arises solely to serve the public interest and demonstrated that important political advantages held by businesses can contribute to industry capture of the regulatory process. Although his argument was largely based on …

The Bounds Of Executive Discretion In The Regulatory State, Cary Coglianese, Christopher S. Yoo

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What are the proper bounds of executive discretion in the regulatory state, especially over administrative decisions not to take enforcement actions? This question, which, just by asking it, would seem to cast into some doubt the seemingly absolute discretion the executive branch has until now been thought to possess, has become the focal point of the latest debate to emerge over the U.S. Constitution’s separation of powers. That ever‐growing, heated debate is what motivated more than two dozen distinguished scholars to gather for a two‐day conference held late last year at the University of Pennsylvania Law School, a conference organized …

Why Law Now Needs To Control Rather Than Follow Neo-Classical Economics, 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 …