Introduction to the Series on Regulatory Process and Perspective

“Regulatory process” is a phrase that can’t help but sound boring— to many people, it sounds like “arcane arcana,” and even for those interested in the policy substance of regulation, focusing on process issues can seem rather dry. But if you know how to look, regulatory process is anything but dull: it is at the heart of how our government functions today, and the “how” can often decisively shape the “what.”

As such, regulatory process is currently the source of many heated political controversies and a major priority for reform. The imminent return of unified Republican Party government for the first time since 2006 may well mean that 2017 is the year when some long-contemplated regulatory reforms become reality. Some of those would represent modest tweaks to the existing system, but some would effect profound changes in the structure of American government.

Mixing together political science, law, and economics, the Center on Regulation and Markets’s Series on Regulatory Process and Perspective will analyze these potential changes, provide empirical investigations of how process works today, and generally seek to illuminate the connections between process and regulatory quality. We will look at how regulatory agencies interact with the public and interest groups; innovations in the forms of regulatory control, including everything from litigation, securities filing requirements, guidance documents and “Dear Colleague” letters; the ever-evolving role of the Office of Information and Regulatory Affairs (OIRA); and the many controversies about assumptions in cost-benefit analyses. We will also look to understand the often-adversarial relationship between Congress and regulatory agencies, as embodied in oversight, confirmations of executive appointments, and more targeted attempts by Congress to “rein in” what they perceive as an unchecked executive.

Our efforts should inform those in the trenches of the regulatory reform battles, those trying to understand how the many twists and turns of process constrain what policy goals regulation can achieve, and everyone trying to understand just what American government is in the twenty-first century.

I’m excited to announce a great team of contributors for the series. Anne Joseph O’Connell, George Johnson Professor of Law at UC Berkeley, is one of the nation’s top scholars of political appointees, bureaucratic organization, agency rulemaking, and congressional oversight of agencies, and coauthor of an instant classic on regulatory process, “Unorthodox Lawmaking, Unorthodox Rulemaking” (2015). Rachel Potter, Assistant Professor of Politics at UVA, is a leading scholar of the separation of powers and the notice-and-comment rulemaking process and a veteran of OIRA.  And Connor Raso, Counsel at the U.S. Securities and Exchange Commission, is author of a seminal piece on the strategic uses of regulatory procedures and coauthor of a classic study of just how judges think about agency deference.