The Trouble with Counting: Cutting through the Rhetoric of Red Tape Cutting

66 Pages Posted: 11 Jun 2018 Last revised: 26 Jun 2018

Date Written: June 10, 2018


With the issuance of Executive Order 13,771, which requires agencies to repeal two regulations for every one they propose, regulation counting has become a cornerstone of deregulatory policy in the Trump Administration. This article situates the “2-for-1” Order in a larger intellectual project that has long sought to demonstrate that the sheer quantity of regulations is causally related to declines in macroeconomic outcomes like U.S. employment and competitiveness. Regulation counting studies have provided political momentum for deregulatory policies like 2-for-1, and they will undoubtedly be used in the administration’s attempts to rationalize those policies and agency decisions made pursuant to them on judicial review. This article seeks to forestall such attempts by demonstrating that regulation counting studies do not, and cannot, rationalize deregulatory policies like EO 13,771 because they are, themselves, irrational and empirically unsound. It also explores the implications of the turn to regulation counting for the broader dialogue on regulatory reform. I argue that regulation counting starkly illustrates the limits of both cost-benefit analysis and progressive new governance regulatory reforms.

Keywords: administrative law, regulation, deregulation

Suggested Citation

Short, Jodi L., The Trouble with Counting: Cutting through the Rhetoric of Red Tape Cutting (June 10, 2018). Minnesota Law Review, Vol. 103, No. 1, 2018 (Forthcoming), UC Hastings Research Paper No. 288, Available at SSRN:

Jodi L. Short (Contact Author)

UC Hastings Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics