Bespoke Regulatory Review

49 Pages Posted: 2 Apr 2020 Last revised: 13 Jan 2021

Date Written: February 2, 2020

Abstract

An agency that fails to adequately consider the costs and benefits of its proposed regulatory changes increasingly places its rules at risk upon judicial review.

Over the last couple of decades, courts have begun to expect agencies to use regulatory analysis techniques like cost-benefit analysis to justify their regulatory choices. This poses acute risks for the independent regulatory agencies, whose draft regulations are not reviewed by the Office of Information and Regulatory Affairs (OIRA), the White House experts on cost-benefit analysis. Independent regulatory agencies have not fully opted in to OIRA’s regulatory review, likely because they expect that OIRA review portends the end of their ability to make independent decisions.

But what if it didn’t? This article draws upon the author's 10+ years at OIRA to offer a new way forward: bespoke regulatory review. That is, bilateral negotiations resulting in agreements between independent regulatory agencies and OIRA, custom fit to each agency’s unique features.

Keywords: regulation, regulatory, independent agencies, independent regulatory agency, EO 12866, OIRA, cost-benefit analysis, benefit-cost analysis, regulatory impact analysis

JEL Classification: K2

Suggested Citation

Dooling, Bridget C.E., Bespoke Regulatory Review (February 2, 2020). 81 Ohio State Law Journal 673 (2020), Available at SSRN: https://ssrn.com/abstract=3550234 or http://dx.doi.org/10.2139/ssrn.3550234

Bridget C.E. Dooling (Contact Author)

GW Regulatory Studies Center ( email )

805 21st Street, NW
Washington, DC 20052
United States

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