Regulation by Database

72 Pages Posted: 15 Apr 2017 Last revised: 11 May 2017

Nathan Cortez

Southern Methodist University - Dedman School of Law

Date Written: April 12, 2017

Abstract

The federal government currently publishes 195,245 searchable databases online, a number of which include information about private parties that is negative or unflattering in some way. Federal agencies increasingly publish adverse data not just to inform the public or promote transparency, but to pursue regulatory ends ⎯ to change the underlying behavior being reported. Such "regulation by database" has become a preferred method of regulation in recent years, despite scant attention from policymakers, courts, or scholars on its appropriate uses and safeguards.

This Article, then, evaluates the aspirations and burdens of regulation by database. Based on case studies of six important data sets (published by the CFPB, CPSC, EPA, FEC, FDA, and Medicare), the article proposes what I call "Good Government Data Practices" to ensure that databases are reliable, useful, and fair. More optimal data disclosures require careful design choices that consider both data inputs and outputs, including how to gather and process data, how to characterize them, and how to present them. The article envisions a decidedly modern role for government agencies as data "stewards" rather than as mere publishers or repositories.

Agency databases have proliferated on the belief that markets, regulation, and even democracy all require transparency, that sunlight is the best disinfectant. But as transparency has moved online ⎯ becoming more pervasive, more powerful, and more burdened with regulatory dimensions ⎯ we also must recognize that sunlight can also blind or even burn. It is in this spirit that I call for policymakers to embrace the government's role as a data "steward," a sentinel that helps maximize the quality of data inputs and outputs via tailored procedures. The more reliable government data are, the more they can enlighten us and perhaps even deter unwanted behavior.

Keywords: data, databases, administrative law, regulation, information, fda, cfpb, fed, medicare, quality, internet, social media

Suggested Citation

Cortez, Nathan, Regulation by Database (April 12, 2017). University of Colorado Law Review, Vol. 89, 2017; SMU Dedman School of Law Legal Studies Research Paper No. 355. Available at SSRN: https://ssrn.com/abstract=2951968

Nathan Cortez (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States
(214) 768-1002 (Phone)

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