This Article highlights the role of capture in providing a normative foundation for regulatory review of administrative action, which at the federal level is conducted by the Office of Information and Regulatory Affairs (OIRA) within the White House Office of Management and Budget (OMB). It also...

Taking account of the impacts of government action on historically marginalized and overburdened communities is a core policy goal of the Biden-Harris Administration. With respect to regulatory action, the Memorandum on Modernizing Regulatory Review, which President Biden issued on his first day...

Recently, critics of the administrative state have been urging Congress to reassert itself and rein in regulatory action that they maintain is both undesirable as a matter of policy and in violation of constitutional principles. This anti-regulatory position is unwarranted. While regulatory...

The status of independent agencies is almost certainly the most written about and litigated feature of the administrative state. Recently, the legal literature has paid sustained attention to the factors leading the formation of independent agencies. Under what circumstances are agencies more...

Under the Clean Air Act, the U.S Environmental Protection Agency (EPA) is required to determine the stringency of the National Ambient Air Quality Standards (NAAQS), arguably the most important federal environmental program, without considering the costs of achieving these standards. Instead, it...

Recently, critics of the administrative state have been urging Congress to reassert itself and rein in regulatory action that they maintain is both undesirable as a matter of policy and in violation of constitutional principles. This anti-regulatory position is unwarranted. While regulatory...

Whenever legislators and regulators adopt a regulatory change, they face an important question: how should existing actors be required to respond to the new law? For example, if regulators drastically reduce the level of emissions that new plants are permitted to discharge, they might...

In Nonquantifiable, the 2013 Jorde Lecture at the University of California at Berkeley, Professor Cass Sunstein makes a persuasive argument that administrative agencies should engage in breakeven analysis when they are not able to quantify or monetize some or all of the benefits of a particular...

Volumes have been written — both by courts and commentators — about the so-called independent agencies. These agencies are thought of as distinct from executive branch agencies and constitutionally insulated from presidential influence. Yet few have taken the time to ask even the most basic...

This Article tackles a question that has vexed the administrative state for the last half century: how to seriously take account of the distributional consequences of regulation. The academic literature has largely accepted the view that distributional concerns should be moved out of the...