In March, The Regulatory Review published an excellent series of opinion essays analyzing the five recommendations that the Administrative Conference of the United States adopted at its last Plenary session, held in December 2017. I highlighted the new recommendations (and a rare separate statement) when they were published, but The Regulatory Review series delves much deeper. In case you missed that series, here are links to and descriptions of the included essays (from The Regulatory Review):
March 5, 2018 | Nicholas R. Parrillo, Yale Law School, and Lee Liberman Otis, The Federalist Society
Although guidance is officially nonbinding, agencies are frequently under active and legitimate stakeholder pressure to be inflexible. An agency that departs from guidance in the case of one firm may put other firms at a competitive disadvantage and draw accusations of favoritism. The recent ACUS recommendation on agency guidance sets forth a series of measures to foster flexibility in the face of these challenges.
March 6, 2018 | Blake Emerson, UCLA School of Law
Plain language can advance core administrative law values, such as public participation in policymaking and the effective implementation of statutory goals. By identifying procedures and documentary formats that can advance those objectives, one of ACUS’s recent recommendations promises to deepen the federal government’s existing commitment to an effective and accountable administrative process.
March 7, 2018 | Cary Coglianese, University of Pennsylvania Law School, and Todd Rubin, ACUS
Government officials increasingly recognize the value in experimentation and evaluation when it comes to a variety of government programs. The stakes to society are often high for regulation, so it makes sense for government agencies to test and measure the impact of the rules they impose on the economy. ACUS’s recent recommendation on Learning from Regulatory Experience can help regulatory agencies think more carefully and systematically about making their regulations work better.
March 8, 2018 | Jason A. Schwartz, NYU School of Law, H. Russell Frisby, Jr., Stinson Morrison Hecker LLP, and E. Donald Elliott, Covington and Burling LLP
Billions of dollars’ worth of government permits are auctioned or traded in a wide variety of industries, from broadcasting to construction to fishing. The intended goals of marketable regulatory permits include lowering compliance costs, encouraging innovation, and easing administrative burdens. ACUS’s recent recommendations can help guide agencies on how to use marketable permits to harness the efficient decision-making powers of the market without undermining policy goals.
March 9, 2018 | Aaron L. Nielson, Brigham Young University Law School, and Jennifer Nou, University of Chicago Law School
Waivers and exemptions present a significant challenge: agencies often need to grant flexibility when circumstances require, but when abused they may result in arbitrariness and unfairness. How and when agencies use these tools is the subject of a set of recommendations recently adopted by ACUS.
This post is part of the Administrative Conference Update series, which highlights new and continuing projects, upcoming committee meetings, proposed and recently adopted recommendations, and other news about the Administrative Conference of the United States. The series is further explained here, and all posts in the series can be found here.