Reforming 'Regulatory Reform': A Progressive Framework for Agency Rulemaking in the Public Interest

American Constitution Society, Issue Brief, October 2018

Ohio State Public Law Working Paper No. 490

25 Pages Posted: 9 Jul 2019

See all articles by Daniel A. Farber

Daniel A. Farber

University of California, Berkeley - School of Law

Lisa Heinzerling

Georgetown University Law Center

Peter M. Shane

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: 2018

Abstract

For over three decades, “regulatory reform” has been an aspiration chiefly for opponents of regulation. “Better regulation” is a goal nearly everyone would embrace. But changes in the federal administrative process since the 1980s have frequently had the foreseeable, and often intended, effect of hindering efforts to protect the environment, public health, civil rights, and other well-established public interest goals. This Issue Brief envisions what regulatory reform could look like from a different direction, focusing specifically on administrative rulemaking, the primary target of contemporary law reform efforts. The authors ask, what if reformers started with full recognition of the value of administrative regulation in the public interest? Beyond any specific substantive agenda, it is worth exploring whether there are potential changes in agency process and in the oversight of agencies that would improve the administrative state. Are there changes that could make regulation more evidence-based, more transparent, more inclusive, more accountable, and more efficient? If so, then progressives should take up the cause of regulatory reform as our own.

Keywords: administrative law, regulatory reform, rulemaking, advisory committees, judicial review, ex parte contacts, public participation, advisory committees, chevron, standards of review, regulatory oversight, OIRA

JEL Classification: K3, K19

Suggested Citation

Farber, Daniel A. and Heinzerling, Lisa and Shane, Peter M., Reforming 'Regulatory Reform': A Progressive Framework for Agency Rulemaking in the Public Interest (2018). American Constitution Society, Issue Brief, October 2018; Ohio State Public Law Working Paper No. 490. Available at SSRN: https://ssrn.com/abstract=3416544 or http://dx.doi.org/10.2139/ssrn.3416544

Daniel A. Farber (Contact Author)

University of California, Berkeley - School of Law ( email )

Boalt Hall
Room 894
Berkeley, CA 94720-7200
United States
510-642-0340 (Phone)
510-642-3728 (Fax)

Lisa Heinzerling

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

Peter M. Shane

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

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