Category: Old Articles

The Supreme Court held in Firestone Tire & Rubber Co. v. Bruch that the review of administrators’ decisions to deny

In some countries, copyright gives authors a “right to withdraw” works they disapprove. While the United States has no right

In the past 70 or 80 years, there have been three “waves” of reforms to the process of creating and managing U.S. federal and state regulations. The first wave began in 1946 with the passage of the federal Administrative Procedure Act, after which states went on to pass and formalize their own administrative procedures. The second wave began decades later in the mid-1970s, ushering in the era of cost-benefit analysis reforms for regulations. This article focuses on the third wave of regulatory reforms that appears to be sweeping the nation and includes a prediction that the next wave may include a return to some unsettled issues from the past.

Executive Order 12866 describes U.S. policy on regulatory planning and review. It directs agencies to identify the nature and significance of the problem they are trying to solve with regulation, to identify alternative solutions, to assess the quantifiable and non-quantifiable costs and benefits of each alternative, and then to choose the option that maximizes net benefits to society, taking into account distributional effects and other considerations. That policy, which has governed U.S. regulation for several decades, is managed by the Office of Information and Regulatory Affairs (“OIRA”). It is also subject to several exemptions. In April 2018, the U.S. Department of Treasury and the Office of Management and Budget signed a historic memorandum of agreement narrowing one of those exemptions. The memorandum expands the number of Internal Revenue Service regulatory actions for which the Service must comply with Executive Order 12866. This action moved tax rules out of the “presidential tax-policy blind spot.” This article offers a close study of that memorandum of agreement and reveals six striking features that not only affect tax regulation, but also offer intriguing possibilities for (1) scholarly understanding of OIRA as an institution and (2) the future of regulatory review of independent regulatory agencies, which are currently exempt from OIRA review.

Thomas Lambert’s How to Regulate urges regulators to diagnose the extent and causes of the problems they seek to solve and consider the benefits and costs of alternative solutions. It also warns that government officials are affected by the incentives and knowledge constraints they face, and regulations should be designed to mitigate this problem. The Federal Communications Commission’s Restoring Internet Freedom order provides examples of these principles in practice. In its assessment of blocking, throttling, paid prioritization, and other general business conduct of broadband providers, the order first utilized economic research to identify the extent and causes of the underlying problems the FCC sought to solve, then selected alternative solutions tailored to address the problems. In deciding whether to classify broadband as a Title I information service or a Title II telecommunications service, the FCC took note of regulators’ incentives under Title II to extend regulation to include regulation of prices, unbundling requirements, and other types of regulation that the FCC had imposed on telecommunications carriers in the past. Reclassifying broadband under Title I reduced the risk of expanded regulation that would expropriate broadband firms’ sunk investments.

The Internet has changed speech, and our traditional understandings of speech regulation are struggling to adapt. This article argues that the Internet has tipped the quantity of information that individuals are exposed to beyond the point which they are able to meaningfully process. This article draws from a range of fields— from Information Theory, to cognitive psychology, to informatics—to provide both empirical and theoretical support for the idea that there is a limit to how much information individuals can meaningfully process and that we have surpassed that limit. This argument poses a direct challenge to bedrock First Amendment concepts such as the marketplace of ideas and the mantra that “the best response to bad speech is more good speech.”

This is a transcript of the keynote address virtually delivered by Hester M. Peirce at the symposium “Protecting the Public While Fostering Innovation and Entrepreneurship: First Principles for Optimal Regulation,” hosted at the University of Missouri School of Law on February 8, 2019. The transcript of this address was initially published on the official website of the Securities and Exchange Commission; it has been lightly edited to ensure readability and formatting continuity.

This article provides recommendations for governors and other executive branch officials to consider when implementing regulatory reform. Studies have shown that regulatory reform is needed because of the substantial impact on the economy, consumers, and businesses. Recent technological advances have allowed regulations to be quantified by a metric known as regulatory restrictions, which counts uses of “shall,” “must,” “may not,” “prohibited,” and “required.” Quantifying regulatory restrictions allows for comparison of the regulatory scope between states. State-level regulatory reform directed by governors has primarily occurred in three waves following elections in 1994, 2010, and 2016. These reforms have achieved significant results by reducing the number of regulations and saving money that otherwise would have been spent on regulatory compliance.

Subchapter Z, as part of the Tax Cuts and Jobs Act, creates “Opportunity Zones” which provide investors with a tax incentive to invest their realized capital gains in certain distressed neighborhoods. The goal of this subchapter is the economic growth of these communities.