Law Commons^™

Loving The Cyber Bomb? The Dangers Of Threat Inflation In Cybersecurity Policy, Jerry Brito, Tate Watkins

Jerry Brito

Over the past two years there has been a steady drumbeat of alarmist rhetoric coming out of Washington about potential catastrophic cyber threats. For example, at a Senate Armed Services Committee hearing last year, Chairman Carl Levin said that “cyberweapons and cyberattacks potentially can be devastating, approaching weapons of mass destruction in their effects.” Proposed responses include increased federal spending on cybersecurity and the regulation of private network security practices.

The rhetoric of “cyber doom” employed by proponents of increased federal intervention, however, lacks clear evidence of a serious threat that can be verified by the public. As a result, …

Running For Cover: The Brac Commission As A Model For Spending Reform, Jerry Brito

Jerry Brito

With record spending and deficits come calls for reform. Spending reform, however, is easier said than done, and independent commissions are often suggested as a way to tackle intractable political problems. Not all commissions are created the same, however. While baseball and basketball both employ balls, they are entirely different animals. The same applies to congressionally created commissions. The Base Realignment and Closing (BRAC) commissions of the late 80s and early 90s were successful because of their peculiar structure—not simply because they were independent commissions. In this Article we first look at the roots of BRAC’s success and then compare …

Transparency And Performance In Government, Jerry Brito

Jerry Brito

The legal literature on transparency is generally divided into two categories: the study of transparency as a solution to political corruption and scholarship looking at transparency in the context of corporate disclosure requirements. The former is concerned with preventing government malfeasance that can lead to serious societal problems, especially in the developing world. The latter focuses on the disclosure of corporate performance to fully inform markets. However, these two insights on transparency never meet. In this article, we hope to show that just as mandatory transparency can improve corporate performance, it may help improve government performance as well.

Part I …

Midnight Regulations And Regulatory Review, Jerry Brito

Jerry Brito

The term “midnight regulations” describes the dramatic spike of new regulations promulgated at the end of presidential terms, especially during transitions to an administration of the opposite party. As commentators have pointed out, this phenomenon is problematic because it is the result of a lack of presidential accountability during the midnight period—the time after the November election and before Inauguration Day. Midnight regulations, however, present another problem that receives little attention. It is the prospect that an increase in the number of regulations promulgated in a given time-period could overwhelm the institutional review process that serves to ensure that new …

Toward A More Perfect Union: Regulatory Analysis And Performance Management, Jerry Brito, Jerry Ellig

Jerry Brito

Two separate but similar federal initiatives attempt to apply a scientific approach to improve government decision-making and results: performance management and regulatory analysis. Performance management finds its legislative home in the Government Performance and Results Act of 1993, while the main regulatory analysis mandate can be found in Executive Order 12,866.

Both initiatives seek to identify the nature of the problems government is trying to solve, develop alternative solutions, and evaluate the effectiveness and costs of the alternatives. Both require measurement of costs and outcomes. Both involve rigorous analysis to identify whether, and to what extent, government actions cause particular …