This Note uses newly available data to analyze the extent to which U.S. regulatory agencies use guidance documents to improperly avoid the Administrative Procedure Act notice and comment rulemaking process. Legal scholars, courts, and recent presidential administrations have all debated this issue. This paper investigates whether agencies leaders: 1) issue guidance strategically; 2) use guidance to implement ideological policies; or 3) promulgate guidance on a large scale. The paper reports negative answers to these questions, suggesting that agencies do not frequently use guidance documents to avoid the notice and comment rulemaking process.
Author: United States. Congress. Senate. Committee on Homeland Security and Governmental Affairs. Subcommittee on Regulatory Affairs and Federal Management
The Harvard Law Review is offered in a digital edition, featuring active Contents, linked notes, and proper ebook formatting. The contents of Issue 7 include a Symposium on privacy and several contributions from leading legal scholars: Article, "Agency Self-Insulation Under Presidential Review," by Jennifer Nou Commentary, "The Office of Information and Regulatory Affairs: Myths and Realities," by Cass R. Sunstein SYMPOSIUM: PRIVACY AND TECHNOLOGY "Introduction: Privacy Self-Management and the Consent Dilemma," by Daniel J. Solove "What Privacy Is For," by Julie E. Cohen "The Dangers of Surveillance," by Neil M. Richards "The EU-U.S. Privacy Collision: A Turn to Institutions and Procedures," by Paul M. Schwartz "Toward a Positive Theory of Privacy Law," by Lior Jacob Strahilevitz Book Review, "Does the Past Matter? On the Origins of Human Rights," by Philip Alston A student Note explores "Enabling Television Competition in a Converged Market." In addition, extensive student analyses of Recent Cases discuss such subjects as First Amendment implications of falsely wearing military uniforms, First Amendment implications of public employment job duties, justiciability of claims that Scientologists violated trafficking laws, habeas corpus law, and ineffective assistance of counsel claims. Finally, the issue includes several summaries of Recent Publications. The Harvard Law Review is a student-run organization whose primary purpose is to publish a journal of legal scholarship. The Review comes out monthly from November through June and has roughly 2000 pages per volume. The organization is formally independent of the Harvard Law School. Student editors make all editorial and organizational decisions. This issue of the Review is May 2013, the 7th issue of academic year 2012-2013 (Volume 126).
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Who determines the fuel standards for our cars? What about whether Plan B, the morning-after pill, is sold at the local pharmacy? Many people assume such important and controversial policy decisions originate in the halls of Congress. But the choreographed actions of Congress and the president account for only a small portion of the laws created in the United States. By some estimates, more than ninety percent of law is created by administrative rules issued by federal agencies like the Environmental Protection Agency and the Department of Health and Human Services, where unelected bureaucrats with particular policy goals and preferences respond to the incentives created by a complex, procedure-bound rulemaking process. With Bending the Rules, Rachel Augustine Potter shows that rulemaking is not the rote administrative activity it is commonly imagined to be but rather an intensely political activity in its own right. Because rulemaking occurs in a separation of powers system, bureaucrats are not free to implement their preferred policies unimpeded: the president, Congress, and the courts can all get involved in the process, often at the bidding of affected interest groups. However, rather than capitulating to demands, bureaucrats routinely employ “procedural politicking,” using their deep knowledge of the process to strategically insulate their proposals from political scrutiny and interference. Tracing the rulemaking process from when an agency first begins working on a rule to when it completes that regulatory action, Potter shows how bureaucrats use procedures to resist interference from Congress, the President, and the courts at each stage of the process. This exercise reveals that unelected bureaucrats wield considerable influence over the direction of public policy in the United States.
In the years since the passage of the Patient Protection and Affordable Care Act (PPACA, or, colloquially, Obamacare), most of the discussion about it has been political. But as the politics fade and the law's many complex provisions take effect, a much more interesting question begins to emerge: How will the law affect the American health care regime in the coming years and decades? This book brings together fourteen leading scholars from the fields of law, economics, medicine, and public health to answer that question. Taking discipline-specific views, they offer their analyses and predictions for the future of health care reform. By turns thought-provoking, counterintuitive, and even contradictory, the essays together cover the landscape of positions on the PPACA's prospects. Some see efficiency growth and moderating prices; others fear a strangling bureaucracy and spiraling costs. The result is a deeply informed, richly substantive discussion that will trouble settled positions and lay the groundwork for analysis and assessment as the law's effects begin to become clear.
