The COVID-19 pandemic substantially disrupted traditional methods of teaching and learning, affecting over 1.6 billion students worldwide. By necessitating widespread school closures, the pandemic initiated collective efforts by policymakers and educators alike to adapt the existing education system to the demands of a new world.

Schools abruptly transitioned to remote education with little preparation. Teachers dramatically altered their instructional delivery while parents and students acquired newfound digital expertise. In addition, many states canceled or significantly altered examinations that were federally mandated pre-pandemic, leaving school systems responsible for constructing new means of evaluating the progress of their student body.

The United Nations stated that the pandemic had “stimulated innovation within the education sector.”

Despite these innovations, the pandemic has worsened learning deficiencies amongst K-12 schoolchildren. In the future, these deficiencies may limit the number of qualified college applicants and make high schoolers less likely to pursue postsecondary education. Even after graduation, the pandemic may continue exerting disrupting socioeconomic impacts: one study estimates that pandemic students will make at least $49,000 less over their lifetimes, amounting to a total loss to the U.S. economy of $128 billion per year.

Furthermore, the pandemic exacerbated preexisting educational disparities by disproportionately affecting the most vulnerable children, including those with disabilities and those living in poor or rural areas.

This newfound appreciation for the important role education plays in the lives of children has intensified calls for more permanent change.

Scholars explore the role of regulation in increasing student achievement in the COVID-19 landscape.

• In an issue brief published by the Aurora Institute, Fred A. Jones, Jr. and Alexis Chambers of the Aurora Institute argue that, because most students are performing worse than they were before the pandemic, it would be unjust for the education system to return to its pre-pandemic state. Instead, policymakers should create “innovation zones” allowing schools to obtain breathing room from state regulations that hinder the implementation of novel instructional methods. Jones and Chambers suggest that, when establishing these “innovation zones,” schools commit to innovating in the pursuit of modernized education in exchange for specific flexibilities and exemptions from regulatory requirements. For these programs to work, however, state educational agencies must be willing to transform their agency’s role from one of compliance and enforcement to one focused on innovation and progress, contend Jones and Chambers.
• In an article published in the Journal of Pedagogy, Eric Wearne of Kennesaw State University explains that a number of alternative schooling methods, including “hybrid homeschool” programs, have been on the rise in recent years. Wearne describes how hybrid homeschools, in which students attend classes for some days and are homeschooled on others, exist in a sort of “regulatory gray area” because they are not entirely categorizable as homeschools or as conventional private schools. Hybrid homeschools benefit from “permissionless innovation,” Wearne explains, because existing regulations generally permit experimentation with new technologies and models by default. Wearne argues that, because these hybrid homeschools adjust more nimbly to the challenges of the pandemic, policymakers should continue allowing these innovative educational systems to operate free of burdensome regulatory requirements.
• State-level control of regulatory interventions in the education sector provide an opportunity to promote more equitable outcomes, according to William R. Black and Adam C. Rea of the University of South Florida in a policy brief published in the University of South Florida Scholar Commons. Black and Rea critically examine the Every Student Succeeds Act, which calls on states “to detail school improvement efforts based on state-identified needs.” Despite the benefits of affording states flexibility in their approach to school interventions, Black and Rea argue that this decentralization has made it difficult to track progress or standardize metrics across schools.
• In an article published in the Journal of Law & Education, Stephen D. Sugarman of the University of California Berkeley Law School outlines strategies deployed by regulatory reformers in their quest to achieve equal educational opportunity. Sugarman explores how regulation in the education sector interacted with changing approaches to economic regulation over the past 50 years, focusing this analysis on the advancement, or lack thereof, of minority groups. Despite the lack of success of any one regulatory approach, Sugarman remains skeptical of deregulation and instead emphasizes the importance of who is left in charge of regulating education.
• In a report published by the Center on Reinventing Public Education, Christine Pitts and coauthors explore the state of virtual learning as schools reopen and propose a series of steps to improve students’ digital learning outcomes. The Pitts team notes inequitable distribution of broadband, particularly among Black, Latino, and Indigenous households, and argues that policymakers can close the digital divide by investing in digital infrastructure. School districts and state agencies should also place greater emphasis on flexible learning and community-centric models, according to Pitts and her coauthors, to implement “anytime, anywhere” learning policies to adapt to barriers that students may face in accessing classes outside the confines of traditional schooling hours.
• In a working paper published by the Annenberg Institute at Brown University, Kylie L. Anglin of the University of Connecticut examines the impact of “district of innovation” status in Texas public schools, which permits school districts to opt out of certain regulations. Anglin explains that district of innovation schools most frequently exempt themselves from regulations regarding class sizes, school scheduling, and teacher certifications. The exemption of regulations, however, does not produce a positive or substantial impact on learning outcomes or student achievement when compared to schools that did comply with such regulations, Anglin found.

IN THE NEWS

• President Joseph R. Biden approved an emergency declaration for Puerto Rico in the wake of Hurricane Fiona. The declaration authorized the Federal Emergency Management Agency to provide resources, such as federal funding, medical care, and safety inspections, to the government of Puerto Rico as it responds to the flooding and power outages. Governor of Puerto Rico Pedro R. Pierluisi said the emergency declaration would allow his administration “to effectively respond to damages caused by the storm.”
• The U.S. House of Representatives passed a bill that would make it more challenging for members of Congress or the Vice President to overturn presidential election results. The bill would amend the Electoral Count Act by requiring one-third of both the House and the U.S. Senate to sign on to objections to election results certification. The bill also clarified that the Vice President, as presiding officer, would not have the power to obstruct or delay the counting of electoral votes. Earlier this year, however, a bipartisan group of U.S. Senators began working on a narrower legislative proposal to amend the Electoral Count Act. Senator Susan Collins (R-Maine) announced this week that 10 Republican and 10 Democrat senators are co-sponsoring the Senate proposal.
• The U.S. Court of Appeals for the Fifth Circuit issued a ruling that denied a trade association challenge to a Texas House law that regulates large social media platforms with more than 50 million monthly active users. The bill categorizes platforms as “common carriers by virtue of their market dominance” and prohibits those platforms from censoring users’ posts based on the viewpoints of users. The Fifth Circuit upheld the bill as constitutional, allowing Texas to continue to restrict platforms’ abilities to moderate content. Scott Wilkens, senior counsel at the Knight First Amendment Institute at Columbia University, said that “if the ruling is left in place, it will give state officials all over the country sweeping power to distort free speech online.”
• The U.S. Department of Homeland Security (DHS) became the first federal agency to roll out an electric vehicle for law enforcement purposes as part of the agency’s overall initiative to transition its vehicles to electric as part of its Climate Action Plan. The Climate Action Plan commits DHS to fight climate change by focusing on sustainability, energy resilience, and climate adaptation planning. DHS has roughly 30,000 vehicles outfitted for law enforcement and stated it plans to continue transitioning its fleet to electric. DHS Acting Under Secretary for Management Randolph D.Alles stated that “DHS is proactively seeking to reduce greenhouse gas emissions” and that electric vehicles “have the potential to improve federal fleet efficiency and reduce vehicle operation and maintenance costs.”
• The Federal Trade Commission (FTC) proposed a new rule to address the harms posed by scammers who impersonate governments and businesses. The FTC stated that it relied on its legal authority to issue trade rules that define unfair or deceptive practices. The FTC shaped its rule based on public input, including comments from individuals documenting their financial injuries from impersonation scams. The FTC explained that the rule would prohibit people from misrepresenting themselves as government or business officials on phone calls, websites, email addresses, and advertisements.
• The U.S. Department of the Treasury announced that it is seeking public input on financial and national security risks associated with the growing digital assets sector, as directed by an executive order meant to ensure the responsible development of digital assets. The Treasury Department stated that digital assets, including cryptocurrencies, have played a role in recent cybercriminal activities, such as money laundering, terrorist financing, and fraud schemes. The Treasury Department also requested input on how the department can work with other government agencies and private businesses to address these risks.
• The Federal Communications Commission (FCC) passed a final rule that grants users of Telecommunications Relay Services —a service provided by the FCC that allows people with disabilities to make calls—a two-week grace period to use these services while the providers register and verify users’ identities. Previously, before users could begin to use these services, providers had to register users, which delayed users’ abilities to access services. The new two-week grace period allows users to immediately use services while providers go through the registration process,  which the agency expects to promote efficiency.
• The Architectural and Transportation Barriers Compliance Board issued an advance notice of proposed rulemaking to supplement guidelines for facilities covered by the Americans with Disabilities Act (ADA). The new guidelines addressed the accessibility of various types of self-service transaction machines, including ATMs and self-service checkout machines, which can pose issues to disabled persons. For example, lack of tactile controls or robust sound outputs can create barriers for persons with visual impairments, lack of captioning capabilities can create difficulty for persons with hearing impairments, and those in wheelchairs may not be able to see the machine’s instruction screen. The Board stated its intent to improve the minimum number or percentage of accessible kiosks a building should have and improve the features these kiosks must have to be accessible under the ADA.

WHAT WE’RE READING THIS WEEK

• In an article in the Minnesota Law Review, Danielle Stokes, assistant professor at the University of Richmond School of Law, discussed the different roles of local, state, and federal governments in regulating land use in the renewable energy sector. Stokes examined some of the more “microlevel changes,” such as land use and zoning, which are necessary to mitigate the macro-scale impact of climate change. Stokes argued for a plan based on “cooperative federalism,” in which the federal government would have central planning capabilities to coordinate the siting of new renewable energy generation facilities, and state and local governments would be responsible for implementation and operational guidelines. Stokes concluded that cooperation between different levels of government would not only allow the United States to fight climate change but would promote more efficient and comprehensive regulatory schemes and build inter-governmental connectedness.
• In a Brookings Institution report, Howell Jackson, professor at Harvard Law School, Timothy Massad, nonresident scholar at Brookings, and Dan Awrey, professor at Cornell Law School, outlined a framework for regulating stablecoins, which are cryptocurrencies whose values are tied to other currencies or commodities. Jackson, Massad, and Awrey explained that the increasing use of stablecoins has sparked debates over the risks they pose to stablecoin holders and other consumers. The authors argued that the Office of the Comptroller of the Currency can act without new legislation to create a special bank charter, which is a document that authorizes and governs financial institutions, to sponsor and supervise stablecoins. Jackson, Massad, and Awrey stated that stablecoin issuers would have the choice to opt in to the charter, which they argued would be commercially advantageous for the issuers. Jackson, Massad, and Awrey elaborated that opting in would require stablecoin issuers to disclose their auditing procedures, management structures, marketing plans, and risks associated with their stablecoins.
• In an Urban Institute report, Jorge Morales-Burnett and Rebecca Marx, research analysts at the institute, explored the emergence of the role of chief resilience officer in 100 cities across the world. Morales-Burnett and Marx explained that chief resilience officers are senior leaders in city governments who coordinate resources across departments to ensure their respective governments can respond to “cross-cutting shocks and chronic stressors” such as climate change. Morales-Burnett and Marx reviewed multiple models for cities to establish resilience offices, improve the stability of the chief resilience officer position, and build resources the officers need to be successful. Morales-Burnett and Marx determined that chief resilience officers are “valuable assets in city governments across the world” with the potential to navigate stressors across successive political administrations.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Jeffrey Czajkowski, a director at the National Association of Insurance Commissioners, Kevin Simmons, professor of economics at Austin College, and James Done, a scientist and research fellow at the National Center for Atmospheric Research, argued in favor of stricter building codes. Czajkowski, Simmons, and Done reflected on the devastation wrought by recent hurricanes to contend that, although “strong and well-enforced building codes increase the costs of property construction,” they also can protect vulnerable communities against property damage. Czajkowski, Simmons, and Done examined the Florida Building Code—which they noted was the “strongest statewide building code in the United States”—enacted in 2001 after Hurricane Andrew to conclude that the benefits of stringent building codes outweigh the costs.

Overdose is the third leading cause of death for people in prison. After their release from prison, people are about 129 times more likely to die from a drug overdose than the rest of the population. Opioids remain the largest driver, 72.9 percent, of drug overdose deaths.

In a recent article, David Howard Sinkman and Gregory Dorchak argue that the Americans with Disabilities Act (ADA) is a powerful enforcement tool for the Department of Justice (DOJ) to help jails and prisons provide medications used to treat opioid use disorder, and prevent overdose deaths.

Medications for opioid use disorder (MOUD), like methadone, buprenorphine, and naltrexone, are approved by the FDA and can dramatically reduce fatal opioid overdoses. As Sinkman and Dorchak explain, however, a vast majority of jails and prisons ban these medications. For example, as of 2018, methadone was available in only 22 of 3,300 local jails.

Restrictions on MOUDs, Sinkman and Dorchak argue, not only prevents hundreds of thousands of people in prison from receiving life saving medications, it also violates the ADA.

Opioid use disorder is a chronic brain disease where individuals have a compulsive and prolonged opioid use, but lack a legitimate medical purpose despite the negative consequences resulting from opioid usage. Under the ADA, courts have treated a disability similar to receiving medical treatment for a disability. Thus, the authors note, the ADA protects inmates who require MOUDs and prisons or jails that ban their access may be in violation of the ADA.

Moreover, Sinkman and Dorchak explain, the ADA protects access to the three forms of MOUD, methadone, buprenorphine, and naltrexone, not just one of these, since the medications each have different treatment and prevention purposes that are not interchangeable.

The DOJ is responsible for enforcing “ADA obligations for all programs, services, and regulatory activities” related to corrections. As a result, the DOJ has incorporated ensuring MOUD access in jails and prisons as part of its opioid crisis strategy in various jurisdictions, including Louisiana and Massachusetts.

Sinkman and Dorchak argue that district court litigation liability has helped the DOJ’s outreach to prisons and jails. In Massachusetts, a jail banned methadone, and thus, did not conduct an individualized inquiry into a person’s specific MOUD needs while incarcerated. A federal district court held that the jail’s ban violated the ADA, which required an individualized inquiry by medical personnel. Similarly, a federal district court in Maine held that a county jail violated the ADA for refusing to provide a person with her doctor-prescribed MOUD.

Despite growing support from law enforcement and the Bureau of Prisons to expand MOUD access, MOUD bans continue nationwide. As of 2018, about 500,000 people in prison were denied MOUD treatment, which the ADA protects, even though the people could have benefitted from or were already receiving MOUD.

Sinkman and Dorchak note that although the ADA allows for public entities to impose legitimate safety requirements, for example, in placing a ban on MOUDs, the ban must be based on “actual risks, not on mere speculation, stereotypes, or generalizations about individuals with disabilities.” The authors argue barriers to MOUD access are often a result of stereotypes and stigmas about the treatment or potential diversion concerns, rather than actual risks.

Some forms of MOUD, like buprenorphine and methadone, are also opioids. This, Sinkman and Dorchak explain, leads law enforcement officers to believe that people in prison are simply substituting their drug addiction and thus hindering their recovery. According to the Department of Health and Human Services, however, medication-assisted treatment, such as MOUDs, “does NOT replace one addictive drug with another.” Moreover, as the authors describe, people being treated with MOUDs are not compulsively seeking them, and instead, depend on the medication much like other chronic diseases that require long-term care.

Furthermore, correctional facilities may have diversion concerns when considering providing MOUD access. For example, officers fear that providing one person with a legitimate MOUD prescription would divert the medication to other people in prison who lack such a prescription. Yet, Sinkman and Dorchak note from their experience with facilities that provide MOUD, including in Rhode Island, Philadelphia, and New York City, once facilities expand MOUD access, people in correctional facilities are no longer driven to seek illicit overdose medication and diversion falls.

Additionally, Sinkman and Dorchak reflect that law enforcement officials may be open to MOUD access and expansion, but may be unaware of the ADA’s protections for people in prison who require these medications. In particular, the authors describe correctional officers as more willing to revisit their reluctance to MOUD access after hearing about the potential for a civil rights investigation or litigation.

The word “ghost” can bring up different images—a supernatural specter, a luxury car, or a person who, without warning, stops returning your calls. The U.S. Department of Justice, however, wants to eradicate “ghosts” in an area less often associated with them: firearms.

On April 11, President Joseph R. Biden announced a new final rule issued by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF)—an agency within the Justice Department—regulating guns that can be assembled at home. These guns are known as “ghost guns,” reflecting the fact that, because they lack serial numbers, these guns cannot be traced back to their owners.

The new rule makes changes to earlier regulations adopted under the Gun Control Act of 1968. One especially notable change is that the new rule expands the definition of “firearm,” making gun kits equivalent to preassembled regulated firearms. One important consequence is that anyone seeking to buy a gun kit must undergo a background check. Any privately assembled firearms—that is, firearms assembled from a kit—that do not come with identifying markings must be identified or marked by whoever is assembling the guns so that law enforcement officials can trace them.

President Biden justified the new rule by pointing to the increasing availability of ghost guns—and an increase in crime committed using ghost guns. In 2020, local law enforcement agencies reported 8,712 suspected ghost guns to the ATF, which represents a more than 400 percent increase from 2016.

Proponents of the rule argue that it is necessary to close loopholes in gun regulation. They also support the rule as a necessary public safety measure.

Former ATF agent David Chipman argues that the rule does not impose much of a burden because the only people who buy ghost guns are people who want to avoid background checks, such as “criminals or extremists.”

Critics, however, have raised legal questions about the rule. They argue, first, that the Justice Department has exceeded its statutory authority. This argument rests on critics’ reading of a provision in the Firearms Owners’ Protection Act of 1986 that amends the Gun Control Act to allow the Attorney General to prescribe “only such rules and regulations as are necessary.” Because these critics think that regulations of unassembled kits are not necessary to public safety, they contend that the Justice Department has exceeded its limited rulemaking authority.

Individuals who submitted comments to the ATF in opposition to its rule also argued that the rule’s definition of “firearm” to include unassembled kits runs contrary to the Gun Control Act’s definition of “firearm.” These commenters argued that, because the Gun Control Act defines a “firearm” as a “weapon that can be readily converted to expel” projectiles, expanding the initial definition of a firearm to include weapons kits contradicts the plain reading of the statute.

Supporters of the rule, though, counter that the Justice Department has authority to adopt the rule under the Gun Control Act because the rule is “consistent with Congress’s intent to regulate the core component of the firearm.” The Justice Department also argues that the Gun Control Act’s definition of “firearm” covers weapons that can easily be converted to fire, not just weapons that are preassembled and ready to fire.

If the rule is defended as falling within a broad reading of the word “firearm,” critics say that this raises a different problem: the rule then violates the nondelegation doctrine. Under that doctrine, statutes cannot give open-ended authority to agencies because only the U.S. Congress has the constitutionally granted power to write laws. A majority of the justices currently on the U.S. Supreme Court have expressed sympathy for increasing scrutiny of laws on this basis.

At a minimum, any grant of authority must be based on statute-based guidelines directing officials how to exercise delegated power. But the Gun Control Act, critics argue, does not contain an “intelligible principle” to guide ATF’s rulemaking.

The Justice Department responded to nondelegation critiques by noting that the Supreme Court has found that statutes authorizing agencies to regulate in the public interest contain “intelligible principles.”

Lawmakers have expressed concern about the rule as well. On April 14, U.S. Senators Ted Cruz (R-Texas), James Lankford (R-Okla.), and Mike Lee (R-Utah) announced that they would introduce a joint resolution of disapproval of the rule pursuant to the Congressional Review Act (CRA). Senator Lankford called the rule “another attempt by the Biden Administration to strip law-abiding citizens of their Second Amendment rights,” and Senator Lee argued that the rule violates the Firearms Owners’ Protection Act’s prohibition of a federal gun registry.

Even if the senators have enough votes to succeed in gaining a majority for a resolution of disapproval, their effort to overturn the rule through a CRA resolution does not look likely to succeed. After all, it would require approval from both the U.S. Senate and the U.S. House of Representatives, as well as the President’s signature.

One might even say that reversal of the ATF rule through the CRA’s procedure does not seem to stand a ghost of a chance. Challenges through the courts, however, might reach a different result.

This year marks the 12th anniversary of BP’s (formerly British Petroleum) Deepwater Horizon accident, which involved an offshore oil rig in the Gulf of Mexico that caused the largest marine oil spill in U.S. history. Such spills cause substantial economic harm, especially in tourism-dependent coastal areas. They also hurt fisheries, an important issue because fish provide about 17 percent of global animal protein intake.

Despite the harms caused by the Deepwater Horizon spill, the accident did not trigger major federal regulations. In part, politicians from oil-dependent coastal states lobbied for leniency. Former British Prime Minister David Cameron defended BP in his conversations with President Barack Obama.

In a recent research article, we found that stock markets were also lenient with BP and with the oil and gas industry more generally. This finding raises the question of what incentives exist for the oil and gas industry to ensure safety at offshore production sites, or even to exit from offshore production entirely.

This issue is important because, since 2005, about one third of global oil and 15 percent of U.S. crude oil comes from offshore sources. The Gulf of Mexico, where the Deepwater accident took place, accounts for about 95 percent of U.S. offshore oil production. And the recent Inflation Reduction Act might create more incentives for offshore drilling by obliging the federal government to auction oil and gas leases before it can issue permits for wind and solar energy.                                                                   

In the last 50 years, the U.S. oil and gas industry has suffered two notable disasters. In addition to the Deepwater accident in 2010, an Exxon Valdez oil tanker struck a reef in 1989 in Alaska’s Prince William Sound, spilling about 11 million gallons of oil. In response, the U.S. Congress enacted the Oil Pollution Act of 1990 that required oil tankers and barges to have a double hull design. That law also obligates parties responsible for oil spills to pay for cleanup and restoration.

The 2010 Deepwater Horizon spill was about 20 times bigger than Exxon Valdez, spilling over 200 million gallons of oil. Eventually, BP paid over $60 billion in fines. A new federal regulation, the 2016 Wells Control Rule, emerged following the spill and the federal government created a new regulatory body, the Bureau of Safety and Environmental Enforcement. But these regulatory changes were modest in comparison to the response to Exxon Valdez and they did not impose significant regulatory costs.

In addition to the costs of fines and new regulatory burdens, it is often supposed that fear of reputational damage might lead firms to upgrade their industrial practices or to exit from offshore drilling altogether. After all, firms invest vast sums into their reputations, which confer a social license to operate. This social license helps firms to earn the goodwill of regulators, customers, and the workforce. But eventually, for firms to exit a sector—or, at minimum, invest in upgrading workplace practices—regulations, fines, and reputational damages must affect stock prices. After all, the compensation of top managers is often linked to stock prices.

In our recent article, we examined how the Deepwater accident affected BP’s reputation and stock price for the period from 2007 to 2017. We used a novel technique—synthetic control—to create a counterfactual BP because we wanted to assess how BP’s reputation and stock price would have fared in the absence of the spill. We constructed a synthetic brand that is sufficiently similar to BP but which did not experience the negative shock of the Deepwater accident.

To measure reputation, we drew on YouGov’s BrandIndex database, which reports respondents’ general impression of the brand, the perceived quality of the product, the value for money, and the respondent’s willingness to work for the company. For stock prices, we used S&P’s Capital IQ database.

We found that, after the 2010 accident, BP’s reputation dropped relative to the synthetic control. Although BP’s reputation recovered over the next 18 months, it stabilized around a lower level in the long run—defined as two to seven years—compared to the synthetic control. Thus, BP has suffered long-term reputational damage from the Deepwater accident.

This finding was surprising because, since 2000, BP had invested a substantial sum in a “Beyond Petroleum” advertising campaign to highlight its commitment to environmental protection. Furthermore, after the Deepwater accident, it invested about $500 million in brand enhancement. Yet, the reputational damage caused by the Deepwater accident seems to have persisted in the long term.

Even though we found an impact on BP’s reputation, we did not find that the Deepwater accident affected BP’s stock prices in either the medium term—defined as one to two years—or the long term. This finding calls into question whether stock markets create sufficiently strong incentives for firms to pay careful attention to industrial safety or to exit certain activities.

Any accident widely covered in the media could affect all firms in the industry. Consider the 1979 Three Mile Island accident that led to halting the construction of nuclear reactors in the United States. One reason for such an industry-wide effect is that the public cannot differentiate well between firms that have safer practices and those that do not.

Moreover, the public cannot boycott specific firms if all firms sell a generic product, such as gasoline. When products are differentiated, industry-wide reputational spillovers are not inevitable. The Volkswagen diesel scandal did not necessarily sully the reputation of Ford, Honda, or even German carmakers such as BMW.

The Deepwater accident did not seem to have diminished the reputations of other firms in the oil and gas industry. This outcome is probably why the industry did not launch any major initiative to assure the public that the industry was committed to the safety of its offshore facilities. Contrast this with how the chemical industry responded in the aftermath of a major industrial accident—the 1984 Union Carbide’s disaster in India—by launching an industry-wide “Responsible Care” program. But the oil industry launched no such initiatives after the Deepwater accident.

Similarly, we do not find that the stock prices of other oil and gas firms were affected by the Deepwater accident. Neither they nor BP paid any discernible price from investors for an industry catastrophe that inflicted enormous environmental damage on the Gulf Coast region.

In sum, as the rush to drill offshore oil and gas continues, it is useful to keep in mind the extent to which stock markets could create incentives for firms to take workplace safety and environmental concerns seriously—or not.

The Biden Administration has a two-part strategy to mitigate climate change. In one part, it seeks to minimize the role of fossil fuels in the transportation sector by encouraging people to switch to electric vehicles. In the other part, it aims to minimize the role of fossil fuels in generating electricity by encouraging generating companies to switch from carbon dioxide emitting fossil fuels to carbon-free sources, such as solar and wind.

Both parts of this two-part strategy must be implemented simultaneously and aggressively to have the desired effect on the rapidly changing climate. But the successful implementation of this plan faces many serious obstacles. One of these derives ultimately from the fact that people who consume fossil fuels directly or indirectly have no incentive to use carbon-free sources because they do not bear the cost of the emissions caused by their use of fossil fuels.

The Biden Administration’s efforts to implement recent legislation seeking to overcome this obstacle have the potential to create serious antitrust problems. To minimize the risk of this unintended adverse effect, the Administration must take steps to draft clear regulations implementing the recently adopted Inflation Reduction Act (IRA).

Economists widely agree that the most efficient and effective way to overcome consumers’ lack of incentives to use carbon-free energy sources would be to use either a carbon tax or a cap-and-trade system to force those who account for carbon dioxide emissions to bear the cost of those emissions. Politicians are not willing, though, to implement a system for pricing carbon emissions. The public is also not willing to pay the resulting large increases in the cost of gasoline, other petroleum products, electricity, and the many products and services that depend on those sources of energy.

The Biden Administration persuaded the U.S. Congress to implement a second-best solution through IRA by including provisions in this new law that provide large subsidies to electric vehicles and carbon-free sources of electricity. These provisions have the potential to cause major antitrust problems, however, because of the location of the raw materials that are required to implement the Biden Administration’s climate mitigation plan and due to the multi-step chain of production and distribution of those raw materials.

Clean energy technologies, such as electric cars, solar, and wind, are far more mineral-intensive than fossil fuel technologies. To achieve the Biden Administration’s climate goals, the United States must significantly increase the mining and production of eleven key minerals. The required increases are enormous. Thus, for instance, the demand for graphite, cobalt, and lithium will need to increase by 500 percent.

The United States accounts for only a small fraction of the mining and production of the minerals required to make the transition to carbon-free sources of energy. The primary sources are located in China, Brazil, Mozambique, Congo, Russia, Vietnam, Australia, Chile, and Argentina. The combination of converting raw materials into usable forms and distributing them to the United States depends on a complicated chain of distribution that is currently dominated by Chinese companies. Those unpleasant realities do not fit well with the climate change provisions of the IRA.

To persuade Congress and the public to support the large subsidies for clean energy in the IRA, President Joseph R. Biden had to characterize the transition to clean energy as a source of many new high-paying jobs in the United States.

Consistent with that characterization, Congress included three types of conditions on eligibility for each of the many subsidies in the IRA. First, a subsidy recipient must satisfy statutory conditions that require every contractor and subcontractor to pay the prevailing wage. Second, a recipient must maintain training and apprenticeship programs. Finally, a recipient must certify that every product, service, and component it produces or sells meets a specified minimum percentage of domestic content embedded in its total cost, including mining costs. In addition, no product component can come from a “foreign entity of concern,” a provision that targets the many components of clean energy equipment that come from Chinese companies.

The stringency of each condition varies depending on the product or service to be subsidized and the time when the applicant creates or sells the product or service. Since the new subsidies are contained in amendments to the Internal Revenue Code, the Internal Revenue Service (IRS) has the responsibility to issue, interpret, and implement the rules that determine eligibility for the subsidies. That task is extraordinarily difficult, given the multiple inconsistent goals that the subsidies are intended to advance and the reality that most of the cost of the raw materials required to implement the transition from fossil fuels to clean energy necessarily will be incurred in other countries.

The clean energy provisions of the IRA may have the unintended adverse effect of creating a clean energy market that is dominated by just a few large firms with intolerably high shares of the relevant markets for the products and services that are potentially eligible for the generous subsidies in the IRA. If the IRS drafts, interprets, and implements rules that are complicated and difficult to satisfy, only a few large firms are likely to have the expertise required to obtain the subsidies needed to enter the markets for clean energy products or services. The IRS can reduce that unintended adverse effect of the IRA by drafting, interpreting, and implementing rules that are relatively easy to understand and easy to implement.

The IRS will need help in the process of drafting, interpreting, and implementing rules that satisfy the IRA conditions for eligibility and that minimize the risk of unintentionally creating an unduly concentrated market for clean energy goods and services. The Federal Trade Commission (FTC) and the Antitrust Division of the U.S. Department of Justice should become proactive in providing that assistance.

The United States has experienced and overcome problems of this type in the recent past. The Affordable Care Act (ACA) included provisions that encouraged the formation of accountable care organizations (ACOs)—large organizations that have the potential to improve the quality of health care and to reduce the cost of health care by taking advantage of the economies of scale and scope that are potentially available in the process of providing health care services. The FTC and the Justice Department’s Antitrust Division were appropriately concerned that the IRS might unintentionally create unduly concentrated health care markets through the rules that it issued and interpreted to implement the ACO provisions of the ACA. Both the FTC and the Antitrust Division reduced that risk by assisting the IRS and other agencies in the process of drafting and interpreting the rules required to implement the ACO provisions of the ACA.

The FTC and the Antitrust Division should undertake to play a similar role by helping the IRS draft and interpret rules to implement the IRA’s clean energy provisions. In this way, the Biden Administration can reduce the risk that these provisions will have the unintended adverse effect of creating unduly concentrated markets for the provision of clean energy products and services.

In recent years, the digital divide—the gap between demographics and regions that have access to information and community technology and those that have no or restricted access—has narrowed among rural Americans. Despite federal subsidies and initiatives such as the Affordable Connectivity Program, however, tribal lands remain some of the least connected and most neglected areas of the country.

According to estimates from the U.S. Census Bureau, high-speed internet is available to just over half of Native Americans owning computers and living on reservations or other tribal land, and 18 percent of the population has no internet access at all. Many individuals resort to accessing the internet through smartphones or by connecting at libraries or the homes of friends when there is no reliable cellphone service nearby.

This lack of consistent access hinders tribal communities from building internal and self-sustaining structures for self-governance, quality education, economic opportunity, and cultural preservation. Furthermore, inadequate connectivity exacerbates existing inequities for resource-strained tribal communities, including disparities in physical and mental health, early childhood development, educational achievement, and exposure to the criminal justice system.

A major obstacle to quality broadband access for Native American communities is a lack of infrastructure. Service providers are often hesitant to build towers or plant fiber-optic cables in low-density population areas, such as tribal lands. Although federal funding is available to encourage service provider investment in Native American communities, the Federal Communication Commission (FCC) and the U.S. Department of Agriculture’s (USDA) Rural Utilities Service have historically allocated few funds to tribes or tribe-owned service providers.

Furthermore, representatives from tribal communities report that the administrative requirements for federal grants can be burdensome and the language included in these applications difficult to understand. Recognizing the complex regulatory environment as a barrier to access, the U.S. Department of the Interior’s Bureau of Indian Affairs recently released the National Tribal Broadband Strategy.

One major challenge in assessing connectivity in tribal lands is the dearth of accurate data. The U.S. Government Accountability Office (GAO) reported that the FCC and service providers often overstate the amount of broadband coverage on tribal lands due to data capturing methods that include tribal lands having the infrastructure for broadband, rather than actual access to broadband. Complicating this issue is a lack of clear guidance from the FCC as to how to assess broadband availability and report it on Form 477, which providers must file with the FCC twice a year.

In this week’s Saturday Seminar, we collect scholarship discussing barriers to inadequate broadband access and solutions tribal communities are employing to improve connectivity.

• In an article published in the University of Pennsylvania Carey Law School Public Law and Legal Theory Research Paper Series, Christopher S. Yoo, Muge Haseki, and Leon Gwaka of the University of Pennsylvania argue that tribal communities’ status as “sovereign dependents” of the federal government makes it difficult for them to procure FCC funds for broadband initiatives. They explain that because the federal government often outsources its funding decisions to state governments and has been generally inattentive to tribal needs, Native American tribes frequently find themselves unable to access these resources. They also note that cultural rules about how infrastructure must be installed on tribal lands can sometimes slow progress. Private companies and public universities have helped tribal communities avoid legislative oversight and targeted exclusion in some instances, Yoo, Haseki, and Gwaka state.
• In a recent paper published by New America, policy analyst Claire Park of the Open Technology Institute analyzes the current state of U.S. broadband and the areas in which it falls short. Park argues that broadband adoption in the United States is inadequate compared to other countries, as the U.S. government fails to deliver proper access, adoption, and quality. She proposes that local governments should introduce community and tribal broadband networks. Park argues that tribal community internet access through privately owned internet service providers is expensive, low-quality, and limited in coverage. On the contrary, she explains, community networks could provide faster, higher quality, and more affordable internet service. She subsequently provides examples of successful municipal networks and notes that the federal government has required municipal governments to conduct environmental surveys and obtain permits from state and federal agencies.
• In an article published in The Journal of Law, Medicine & Ethics, Brittney Crock Bauerly, Russell F. McCord, Rachel Hulkower, and Dawn Pepin explore the role that internet broadband plays in healthcare access for tribal communities. Approximately 1.4 million people living on U.S. tribal lands lack broadband access, the authors observe. They argue that poor broadband not only limits access to telehealth services but also hinders other social determinants of health, such as education and employment. Bauerly, McCord, Hulkower, and Pepin note that federal and state policymakers are taking steps to expand broadband access by funding access projects and financing broadband infrastructure. The authors explain that a number of federal agencies run programs to support telehealth access in particular, such as the FCC Rural Health Care Program and USDA Distance Learning and Telemedicine Program. They also observe that some states have mandated that state officials take steps to support coordination of broadband expansion initiatives.
• According to Brian Howard and Traci Morris of the American Indian Policy Institute at Arizona State University, the data captured by the FCC overstates the availability of broadband internet access on tribal lands. The authors suggest that by misrepresenting the data and failing to capture factors such as the affordability of high-speed internet subscriptions, service quality, and denials of service, the FCC ignores substantial barriers to access. Although regulatory solutions have succeeded to the extent that federal subsidies can persuade service providers to formulate strategic business plans aimed at serving tribal communities, the authors recommend that the FCC establish the Office of Native Affairs and Policy as an independent office with a permanent annual budget. Doing so, they argue, will help the FCC to engage with tribes and create bridges with external agencies, private organizations, and industry.
• In an article published by the Institute for Local Self-Reliance, Trostle of the Federal Reserve Bank of Minneapolis provides recommendations for broadband policy in Native Nations in light of the historical relationship between Native Nations and the federal government. Trostle explains that the United States largely controlled Native Nations’ economic development policy until the U.S. Congress passed the 1975 Indian Self-Determination and Education Assistance Act, which provided Native Nations with the control to receive direct funding and develop their own economic plans. Trostle contends that when the United States dictated Native Nations’ economic policy, the federal government ignored many Native Nations’ cultural values, causing a disconnect between the tribes’ economy and tradition. When considering how to expand internet access in tribal lands, Trostle argues that the federal government must learn from past mistakes and respect tribal sovereignty. According to Trostle, Native Nations have planned for how their communities can work to expand internet access, and Trostle recommends that the federal government and other lending institutions help by providing funding for Native Nations to achieve these goals.
• In an article published in the Journal of Information Policy, Heather E. Hudson of the University of San Francisco and Rob McMahon of the University of Alberta discuss indigenous representation in regulatory agencies and proceedings. Hudson and McMahon argue that indigenous participation in regulatory proceedings is important but often limited due to a lack of finances, time, and expertise. Indigenous communities have emphasized, however, the importance of meaningful consultation when policymakers develop broadband infrastructure plans to understand how tribal lands could be affected, they explain. The authors recommend that the federal government help encourage participation and consultation by providing funding, training workshops, and access to government staff.

IN THE NEWS 

• The U.S. Supreme Court denied Yeshiva University’s emergency request to block a New York state court order that demanded Yeshiva officially recognize YU Pride Alliance, the school’s LGBTQ student group. In a 5-4 vote, the Court temporarily reinstated the state court ruling and stated that it may revisit the case at a later time. In doing so, the Court reversed an order previously issued by Justice Sonia Sotomayor approving Yeshiva’s request. The state court had ruled that Yeshiva was an “educational corporation” and therefore unable to claim religious exemption. Yeshiva, a Jewish university, argued that granting official recognition to YU Pride Alliance would “force Yeshiva’s rabbis to yield to secular government on a religious decision” in violation of the First Amendment.

• U.S. Senator Lindsey Graham (R-S.C.) introduced a bill that would create a federal ban on abortion after 15 weeks with exceptions for rape and incest, despite having stated that abortion should be regulated at the state level. If enacted, the Act would keep in place state laws with even stricter restrictions, but would override any law that permits abortion after 15 weeks. Several Republicans, including U.S. Senator Mitch McConnell (R-Ky.), opposed the bill, arguing that the issue should be dealt with at the state level. In response to Graham’s proposal, Senator Chuck Schumer (D- N.Y.) charged that Republican support of laws regulating abortion “has never been about states’ rights” but instead “has always been about making abortion illegal everywhere.” 

• California Governor Gavin Newsom signed into law a bill that requires social media companies that collect information about California residents to report how they moderate user behavior, including incidents of harassment, hate speech, and misinformation to the California Attorney General. Social media companies must also disclose the frequency of such events. Governor Newsom asserted that the bill “brings much-needed transparency and accountability” to users and aims to “protect Californians.” Opponents, however, argued that the transparency measures will stifle free speech, impose burdens on small businesses, and facilitate lawbreakers’ ability to evade detection.

• The U.S. Department of Health and Human Services (HHS) approved an Oregon Health Authority proposal to include community-based mobile crisis intervention as a service covered by Medicaid. The plan—the first of its kind in the United States—allows Oregon to provide stabilization services to individuals experiencing mental health or substance use crises and connect them with behavioral health specialists. These stabilization services aim to de-escalate crisis situations in order to reduce the possibility individuals may harm themselves and limit costly inpatient services. 

• A federal judge blocked an Arizona law that would have restricted individuals from filming law enforcement activity. The law, which was set to take effect later this month, prohibited citizens and journalists from recording police within eight feet if an officer asked the individual to stop. The American Civil Liberties Union (ACLU) challenged the law, alleging that it embodied “blatant constitutional issues” by infringing on individuals’ First Amendment rights, including the freedom to record the public activities of police. The ACLU of Arizona celebrated the decision, stating that “recording law enforcement interactions is one of the best tools to hold police accountable.” 

• The U.S. Department of the Interior proposed a rule to strengthen safety standards for offshore oil and gas drilling operations. The Obama Administration established the standards in response to the Deepwater Horizon explosion and oil spill, but the Trump Administration loosened them in 2019. The proposed rule would require operators to submit equipment failure information directly to the federal government rather than to third parties and begin failure investigations 90 rather than 120 days after discovery. 

• President Joseph R. Biden signed an executive order launching a national biotechnology and biomanufacturing initiative. The initiative directs federal agencies to identify critical research and development goals for the biotechnology industry, improve access to quality federal biotechnology data, and clarify regulations governing biotechnology. The Biden Administration explained that the initiative aims to decrease the United States’ historic reliance on foreign biomanufacturing. 

• The U.S. Fish and Wildlife Service issued a proposal to add the tricolored bat to the endangered species list under the Endangered Species Act. Tricolored bats are primarily threatened by a fungal disease that has killed 90 percent of affected bat colonies and is present in over half of the bat colonies across its 39-state habitat range. The Service explained that “bats are essential for healthy ecosystems and contribute at least $3 billion annually to the U.S. agriculture economy through pest control and pollination.”

WHAT WE’RE READING THIS WEEK

• In an article in the Yale Journal on Regulation, Alexandra B. Klass, professor at the University of Minnesota Law School, argued that the Federal Energy Regulatory Commission (FERC), an agency that regulates interstate energy infrastructure, should revise how it assesses approval of natural gas pipelines. Klass explained that federal and state policies that intend to curb carbon emissions and encourage renewable energy use threaten the need for new natural gas projects. Klass concluded that a failure to consider this threat is a failure of FERC’s legal obligation to approve only projects that serve “present or future public convenience and necessity.” 

• In an article issued by the Center for American Progress, Frances Colón, Anne Christianson, and Cassidy Childs, members of the international climate team at American Progress, argued that the Inflation Reduction Act will help the United States reclaim its position as a global climate leader and encourage other countries to adopt meaningful climate policies. Colón, Christianson, and Childs explained that because the Act represents the largest climate policy change in U.S. history, it should restore the global community’s faith in the United States’ commitment to addressing the climate crisis. The authors asserted that when the global community believes that the United States takes climate change mitigation seriously, the United States can more effectively pressure other countries to meet ambitious climate goals. 

• In a report published by the Urban Institute, Joseph Schilling, research associate at the Urban Institute, and several coauthors explored the challenges facing Philadelphia’s housing regulatory system. Schilling and his coauthors found that most of Philadelphia’s housing code violations are concentrated in Black and low income areas and that most of these violations are associated with chronic health concerns and safety hazards. The authors noted that many violations either go unreported due to fear of retaliation from landlords or unpunished because of the city’s limited capacity to enforce housing codes. To improve Philadelphia’s rental system, the coauthors recommended that Philadelphia expand its code violation database, develop a more robust rental inspection program, and focus litigation on landlords whose properties violate major health and safety codes. 

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Erwin Chemerinsky, now a law professor and dean at the University of California, Berkeley Law School, argued that the Supreme Court deserves some of the blame for police violence because it has limited opportunities for citizens to sue police over their actions. Specifically, Chemerinsky asserted that the Supreme Court has upheld qualified immunity—which shields officers from liability unless they violate clearly established law—and absolute immunity—which protects officers from liability in all scenarios. Chemerinsky added that the Court has also limited lawsuits against local governments that employ police officers, leaving victims of police misconduct with no legal remedy. 

The Joe Rogan Experience—a podcast where comedian and Ultimate Fighting Championship commentator Joe Rogan interviews a wide range of guests—is a conundrum.

On one side of the debate, fans of Rogan applaud his commitment to interviewing a wide range of guests for an extended period of time in a purportedly unbiased manner. Some see podcasts such as Rogan’s as a foil to traditional forms of mainstream media that they have come to distrust.

On other side of the debate, though, critics chide Rogan for his amplification of controversial guests, some whom are said to advance harmful conspiracy theories and further the spread of COVID-19 misinformation. They also criticize Rogan for failing to check facts and operating without traditional journalistic oversight.

How should policymakers resolve this debate?

If hosting platforms such as Spotify fail to moderate podcasts peddling in disinformation, the U.S. government should do more to regulate this growing area of news consumption.

If podcasts were treated like traditional forms of broadcast media—radio, television, and satellite—they would be subject to oversight by the Federal Communications Commission (FCC). Although the FCC must operate within the bounds of the First Amendment’s speech and press protections, the FCC prohibits news broadcasters from distorting the news intentionally or from broadcasting false information that could contribute to public harm.

Podcasters, however, currently evade these prohibitions. But if the FCC and courts choose to adopt a definition of broadcast journalism that includes podcasts that distribute the news, podcast hosts could be required to obtain a license with the agency. This would bring these alternative forms of media under the FCC’s supervision, eliminating some of the problems with fact-checking and deliberate misinformation that can harm listeners.

Questions of line-drawing—such as when does a podcast cross into “news” territory, when does misinformation become deliberate or harmful, or can the FCC regulate other forms of online distribution—could complicate the solution of FCC supervision. But embarking on this delicate line-drawing journey would be preferable to the alternative future of over a quarter of people in the United States depending on news from an unregulated source.

Some of these debates are already underway with recent litigation surrounding Section 230 of the Communications Decency Act. This law gives platforms some immunity from information posted by third party users—but interpretations of the reach of this immunity has been heavily politicized as a choice between misinformation or censorship. Although this debate is ongoing, the FCC has made a case for its authority to interpret Section 230 in the absence of new legislation from Congress, which means platforms such as Spotify could be responsible for misinformation spread by hosts such as Rogan.

Concerns about First Amendment violations could be mitigated by the FCC applying its preexisting First Amendment safeguards, which the agency developed following a rich history of litigation interpreting its reach. In addition, the FCC could commit to limiting the restrictions against explicit and profane material with respect to podcasts.

Even if FCC oversight of podcasts ultimately remains in question, other agencies and tools for regulatory oversight should be explored.

The Federal Trade Commission (FTC), for example, regulates paid advertising content presented on podcasts and other online venues. Although these regulations do not cover all content within podcasts, they require hosts to be fully transparent about any endorsements and advertising content.

Expanding these advertising transparency requirements to relationships between the host and guests of the host’s show—which often benefit the guest by way of increased following and more customers, similar to an advertisement—could better control the vetting and context of information provided by guests. This expansion of regulation could circumvent First Amendment concerns because it would not restrict the speech of the guest but merely require for a disclosure about the relationship between the guest’s appearance on the show and the guest’s business ventures.

Currently, legislators are advancing bills aimed at keeping platforms from elevating harmful content. These bills, called algorithmic amplification bills, do not attempt to censor the underlying content but would limit platforms’ immunity from liability in the event the platforms amplify harmful content.

Platforms such as Spotify, which make big financial investments in podcasts such as Rogan’s, could be punished for using algorithms to amplify harmful content. Passage of new legislation regulating platforms’ amplification of misleading podcasts could provide for a less invasive method of ensuring content quality without directly interfering with podcasts themselves.

With any regulatory avenue taken, government agencies and Congress must carefully consider the tradeoff between potentially restricting speech and protecting listeners. This tradeoff could be addressed by clearly defining what qualifies as “news” or other important information—leaving entertainment and opinion to be untouched by regulators.

With public faith in media at all-time lows, and the spread of misinformation on the rise, the U.S. government must act now to oversee popular podcasts that seemingly present authoritative news.

Saferia Johnson, a 36-year-old mother, was incarcerated in a minimum-security federal prison when the COVID-19 pandemic began ravaging correctional facilities. She suffered from long-term preexisting conditions and was a non-violent offender, making Ms. Johnson a good candidate to complete her confinement at home under U.S. Department of Justice guidelines. After the Federal Bureau of Prisons denied her petition for home confinement, Ms. Johnson petitioned a federal court for compassionate release. Before a court could grant this relief, Ms. Johnson died in prison from COVID-19.

Jenny Roberts, professor at American University Washington College of Law, shared Ms. Johnson’s story during a panel she moderated for the Administrative Law Review about administrative challenges to decarceration. Roberts emphasized the burden that administrative processes can place on incarcerated people—effectively denying them access to mechanisms intended to reduce or avoid time spent in custody.

As in Ms. Johnson’s case, incarcerated people seeking federal relief must first exhaust all of their administrative remedies within the Bureau of Prisons and wait 30 days before they can attempt to access the courts. Roberts argued that these individual-based administrative processes fail to “effectuate the rapid release of large numbers of individuals,” even in response to large-scale crises.

Three panelists shared their expertise on a few of these consequential administrative obstacles to government decarceration efforts.

First, Jason Williamson of NYU Law focused on administrative problems within public defense systems. According to Williamson, most public defense systems are ineffective because defense attorneys must navigate administrative hurdles “to represent their clients in the way the constitution requires.”

In the most common model of public defense in the United States, attorneys, law firms, and nonprofit organizations bid for government contracts. Williamson explained that typically some combination of courts, a local administrative body, a county commission, and sometimes prosecutors decide who receives those contracts. According to Williamson, this process presents the first administrative problem in the public defense context—defense attorneys are often selected by people and entities that have varying, and sometimes opposing, interests in criminal cases.

Once selected, defenders must jump through an “extraordinary number of hoops” to receive the funding required to represent their clients effectively, Williamson noted. Often, defenders must return to the same body that selected them and demonstrate a “real need” for requested resources. According to Williamson, contracting defense attorneys must be strategic about when to ask for additional resources from a limited pot of money. This system raises questions about the ability of attorneys to defend their clients zealously when their funding requests run through the same people who will make decisions about their client’s future, who will decide if their contract will be renewed, and even at times who will oppose them at trial. Williamson concluded that “because of these administrative hurdles, you have a system that is bound to fail.”

Next, Ji Seon Song of the University of California, Irvine School of Law discussed her research on the role of hospitals in expanding the carceral state. According to Song, police work routinely undermines hospital regulations and guidelines. When patients are the subjects of criminal investigations, law enforcement officers are granted broad access to hospital. Song asserted police sometimes question trauma patients while doctors attempt life-saving interventions. She explained that police will also search patients’ belongings, follow doctors into testing sites, and observe diagnostic testing. Police can even request doctors perform medical procedures to recover evidence.

Furthermore, when incarcerated people require medical attention outside of correctional facilities, police use of force policies override hospital medical procedures. For example, Song claimed that a correctional officer can hit a patient to subdue them, even in a hospital, if their use of force policy allows it.

Finally, Kathryn Miller of Cardozo Law described the administrative challenges inherent in probation and parole decisions. Probation—a post-conviction sentence meant to address some of the challenges that led to conviction—was designed to replace incarceration. But Miller noted that the state’s use of probation has expanded exponentially in the last few decades, with courts applying it to individuals who would not have otherwise been incarcerated.

And in many cases, instead of connecting people to services and employment, probation is a barrier to those goals, Miller claimed. Probation officers have the discretion to require excessive meetings, programming, or anything else they deem necessary. Miller emphasized that often “the process is the punishment.”

In addition, probation officers often have the sole discretion to claim individuals are in violation of their probation—a claim that initiates a court hearing to determine if the person should be incarcerated. So, Miller argued, the criminal justice system uses probation processes to increase, rather than decrease, incarceration and surveillance. This is especially true, she claimed, in Black and Brown communities.

Miller argued that parole presents additional administrative challenges to decarceration efforts. Parole is a mechanism through which a parole board can release individuals from incarceration. Although parole boards—typically consisting of political appointees—have guidelines to consider, they also have a lot of discretion in their decision making.

When an incarcerated person is denied parole, they must file an appeal to exhaust their administrative remedies before they can access court remedies. In New York, where Miller practices, these appeals go back to parole boards, which almost never overturn their previous decisions. Miller claimed that these administrative appeals serve only as hurdles that can block incarcerated people’s access to relief in the courts if not taken. Once incarcerated people do get to court, judges must provide extreme deference to the previous decisions of the administrative actors, who had wide discretion to do what they wanted in the first place. Miller emphasized that incarcerated people who challenge the parole decisions of administrative actors rarely succeed.

Roberts contended in her opening remarks that decarceration is appropriate, especially in the country with the most incarcerated people in the world. But as each panelist outlined, many administrative obstacles impede state decarceration efforts.

An investigation by the U.S. Congress revealed that baby food produced by several major U.S. manufacturers contained elevated amounts of toxic metals. The investigation identified high concentrations of cadmium, lead, mercury, and arsenic, which present long-term health risks to growing toddlers.

The U.S. Subcommittee on Economic and Consumer Policy launched its investigation after reports of prevalent heavy metal contamination surfaced. The subcommittee requested data on testing results, internal policies, and standards for heavy metals from seven major U.S. baby food manufacturers. Gerber, Beech-Nut, Hain Celestial Group, and Nurture Inc. shared the required data, but Campbell, Sprout, and Walmart were reportedly uncooperative and did not disclose any information.

The products examined contained shockingly high levels of contaminants, especially compared to safety limits that apply for other products regulated by the U.S. Food and Drug Administration (FDA) and U.S. Environmental Protection Agency. For example, relative to acceptable levels in drinking water, toxic heavy metal counts in baby food were staggeringly higher: five times higher for mercury, 69 times higher for cadmium, 91 times higher for arsenic, and 177 times higher for lead.

The report indicated that manufacturers’ testing practices and standards were inadequate. Companies regularly bypassed finished product testing and typically only evaluated ingredients and whether additives high in toxic metals were used. In addition, companies rarely conducted testing for mercury.

Infants who consume tainted baby food face a significant toxic exposure risk. Due to their underdeveloped filtering systems, arsenic, cadmium, mercury, and lead can have adverse biological effects on children. As these heavy metals build up in bones and tissues, they affect the brain and nervous system, eventually leading to irreversible damage. Experts have linked exposure to toxic heavy metals at young ages with low IQs, diminished cognitive function, and neurologic conditions such as ADHD and autism.

In April 2021, FDA introduced its “Closer to Zero”  action plan to reduce toxic metals in baby food products to be “as low as possible.” The plan includes four steps and seeks to set progressively appropriate safety levels until 2024 or beyond.

The plan’s four-step structure is redundant and encumbers progress. Since information on adequate safety levels is already available from respected sources, the plan’s initial steps of drafting levels and consulting with stakeholders are rendered unnecessary. Focusing on the final two stages that target achievability and implementation would allow for setting safety levels earlier than 2024 and ensuring infant nutrition security faster.

Presently, the only FDA regulation for heavy metals in baby food limits arsenic in infant rice cereal at 100 parts per billion (ppb). Even that standard is highly contested because lower levels of arsenic are achievable and could increase the safety of infant rice cereal.

Overall, insufficient institutional regulations have not made it worthwhile for manufacturers to implement comprehensive safety measures that would require costly capital expenses.

In March 2021, Representative Raja Krishnamoorthi (D-Illinois), who chairs the Subcommittee on Economic and Consumer Policy, introduced the Baby Food Safety Act, which would establish stricter toxic metal limits for manufacturers and require increased institutional oversight from FDA. The new proposed safety limits in the bill would require FDA to reduce mercury amounts in baby food to 2 ppb, cadmium and lead to 5 ppb each, and arsenic to 10 ppb.

Concurrently, FDA would conduct periodic reviews to ensure regulatory compliance, and manufacturers would phase out unsafe ingredients and publish testing results twice a year. The U.S. Centers for Disease Control and Prevention would also raise public awareness about the risks of toxic heavy metal exposure from contaminated baby food.

The bill’s pending status is not encouraging in light of a follow-up report from the subcommittee in September 2021 that indicated broader contamination. Reacting to the slow progress, a coalition of 23 state attorneys general petitioned FDA to accelerate its plan’s timeline and adopt actionable levels by 2022, according to the bill’s recommendations.

Even while awaiting legislative and regulatory action, manufacturers can adopt several sustainable practices to reduce heavy metal concentrations and prevent contamination.

Ingredients should be obtained from ethical suppliers with transparent practices, or from crops grown on land with a low concentration of heavy metals. Manufacturers should prioritize crops with a lower uptake of toxic metals and use natural additives to limit environmental contamination further.

Internally, improving hiring and employment standards would help food companies retain valuable professionals. Keeping production facilities clean around the clock is tantamount. Qualified staff should be able to follow high-quality processes that accord with the Food Safety Modernization Act and with hazard analysis critical control point principles.

Product labels should be clear and contain precise information on heavy metal contents. Regular testing would ensure that heavy metal levels are kept low according to regulations. Baby food sample testing for toxic metals is relatively inexpensive, and manufacturers can obtain good deals with reliable labs that are mutually beneficial. They can also test food packaging for contaminants through a government-approved third-party certified laboratory.

Finally, when contamination is evident, manufacturers should voluntarily issue product recalls, taking an essential step toward upholding their moral imperative and rebuilding the public’s confidence in their products.

Eliminating toxic metals is challenging because crops naturally absorb them from the environment and from other resources used in crop cultivation. Even so, baby food companies are ethically obliged to provide safe products that do not threaten the health of vulnerable infants.

Consultation with the public is widely recognized as a tool to ensure participation in rulemaking while enhancing legitimacy and trust in regulatory agencies.

Many experts have already discussed how to enhance stakeholders’ participation in consultation, an outcome that does not automatically follow by formally opening consultations to everyone. At the same time, how to give a voice to marginalized groups—typically, citizens and small businesses—is still open to debate, both in Europe and the United States. Well-recognized approaches to deal with the latter issue include using e-consultations, multiple consultation methods, and tailored consultation documents.

But recently, a new question has spurred scholarly debate: Should regulatory agencies use computational tools to enhance participation in consultations? Indeed, some government officials already employ artificial intelligence (AI) to process and analyze comments in consultations.

The European Commission shows a mixed attitude in this regard. On the one hand, it uses text processing technologies such as Atlas.ti to analyze comments collected in consultations with large numbers of participants. On the other, the Commission’s Better Regulation Toolbox 2021 includes recommendations for only using data analysis software, such as STATA or NVio, for identifying the existence of organized interests.

Computational tools can help agencies solve problems presented by mass comments, as hinted by the Administrative Conference of the United States (ACUS). For example, technology can de-duplicate identical comments. In addition, automatically computer-generated comments may need to be flagged and stored separately from other comments, which regulatory agencies can accomplish with AI to save considerable time and resources. At the same time, however, these systems may sometimes automatically exclude mass comments or consider them as a single comment, which could misrepresent the level of public support behind the comments.

AI tools can also increase public participation in consultation through social media. ACUS recommends that regulatory agencies take special care when using social media platforms to gather lay comments. Even though citizen narratives add detail to the regulatory discourse, they are hard to assimilate to the managerial, rational language used by decision-makers, and they seldom translate to input to the rulemaking process. According to the European Court of Auditors, this outcome can generate feelings of alienation in citizens, who fear being ignored by rulemakers.

Against this background, there is another important and underexplored field where computational tools could enhance participation: identification of interest groups.

Language-based computational tools can help identify interest groups and give voice to marginalized groups. Members of these groups participate in consultations through documents and narratives that are digitized, which can then be analyzed with tools such as natural language processing (NLP), which allows computers to recognize and analyze speech.

In a recent paper, my co-authors and I demonstrated the feasibility of using NLP techniques to help create clusters of stakeholder groups in consultation processes based on semantics—that is, the way that groups understand and use key words and expressions related to a given policy. We term this process “language-based stakeholders clustering” (LBSC).

LBSC can use linguistic tools in different ways to identify stakeholders. For example, word embedding is a tool that computes the semantic value of different words in a text and creates groups based on people’s shared understanding of the meaning of words. Topic modeling is another technique that scans the frequency and pattern of words in a text and creates groups based on shared topics. A further technique, sentiment analysis, can parse text and then create groups based on people’s shared opinions, preferences, and feelings about a topic.

Linguistic analysis of people’s replies to consultations offers several advantages. Not only does this new methodology increase the empirical evidence that rulemakers have at their disposal, but it may also help overcome barriers to participation, especially for citizens and small businesses. LBSC could analyze narratives from different sources, whether newer sources such as social media posts or classic sources such as replies to questionnaires or feedback documents.

Interestingly, LBSC may lead to clustering stakeholders in ways that are different from clusters that result from traditional qualitative and quantitative analyses. This outcome can occur—as it did in our work—because LBSC gathers insights from stakeholders’ own written language.

For instance, based on individuals’ replies to the consultations over what later became the Digital Services Act and Digital Markets Act proposals, LBSC clustered three groups: individual/micro organizations, small organizations, and medium-large organizations. These clusters were justified by statistically significant differences in the way that stakeholder groups used and understood key terms, such as “gatekeepers,” “self-regulation,” and “readability.”

Using LBSC, we ascertained that even groups belonging to the same community often understand key terms very differently, suggesting that not all groups voice the same concerns even when they say the same words. We could also quantify the difference between each stakeholder groups’ positions in the consultation. This finding could aid further research, as it may help to clarify which positions expressed during consultations later translated into actual rules.

Computational tools, if combined with traditional ones, may provide a more robust understanding of the language used by marginalized groups and what they want. Also, clustering groups based on linguistics can help further participation of the least organized groups, by assigning them true “voice” and providing incentives for them to participate. Consequently, rulemakers should consider using these techniques in combination with traditional tools to enhance participation and effectiveness of consultations.

Before the pandemic, patients seeking abortions faced the complicated and often expensive process of finding freestanding abortion clinics. Now, telehealth abortion enables quick and simple access to medication abortion in the privacy of the home. But experts say that the Dobbs v. Jackson Women’s Health Organization decision has created legal gray areas that may disrupt future access to medication abortion care.

Telehealth abortions consist of a two-drug combination of mifepristone and misoprostol, commonly known as mifepristone. In 2000, the U.S. Food and Drug Administration (FDA) approved pills with these drugs as safe and effective means of ending pregnancies up to ten weeks. By 2020, medication-based abortions accounted for over half of abortions in the United States. Despite widespread use of mifepristone, FDA approved a risk evaluation and mitigation strategy (REMS) for abortion medication which included an in-person dispensing requirement and limited prescribing to certified providers, making it difficult for those who lacked access to doctors’ offices to access the drug.

The COVID-19 pandemic had the unintended consequence of paving the way for more accessible telehealth abortions. During the pandemic, some states relaxed the in-person dispensing requirement for medication abortions. In response to medical professionals’ advocacy, and during a time when reproductive rights seemed increasingly vulnerable, FDA conducted a review of the mifepristone REMS program. In 2021, FDA removed the in-person dispensing requirement, formally allowing medication abortion by mail in 31 states.

Nonetheless, 19 states still have their own legislative mandates that require prescribing physicians to be in the physical presence of patients to prescribe abortion medication. In addition to worrying about how these state laws limit abortion access, experts and reproductive health advocates worry that a different federal administration in the future could reverse FDA’s action and revert to enforcing the agency’s in-person dispensing requirement.

According to the Dobbs decision, the U.S. Constitution does not prohibit states from regulating abortion, including medication abortion. But this does not necessarily preclude federal statutes or regulations from preempting states’ ability to limit access to medication abortion. Although the Biden Administration argues that FDA’s approval preempts states’ from restricting telehealth access to medication abortion, ongoing litigation currently creates uncertainty about how the question of federal preemption will ultimately be settled.

The ensuing battle for regulatory control over medication abortion holds implications not only for those seeking abortion care via telehealth, but also for future federal-state regulatory conflicts. In this week’s Saturday Seminar, experts analyze current telehealth regulatory barriers and explore policy options related to medication abortion care.

• In an article published by Frontiers in Global Women’s Health, Terri-Ann Thompson of Ibis Reproductive Health, Dana Northcraft of Kisaco Research, and Fabiola Carrión of National Health Law Program argue that the regulation of telehealth services and abortion medication distribution perpetuates inequity in the health care system, especially for Black and impoverished communities. FDA’s removal of its in-person dispensing requirement improves the viability of telehealth services for many of the populations who may benefit from it most, Thompson, Northcraft, and Carrión explain. They argue, however, that patient and provider certifications lacking quantifiable safety mechanisms should also be removed.
• In a report published by the Congressional Research Service, Jennifer A. Staman and Jon O. Shimabukuro evaluate the interaction between FDA’s regulation of abortion medication under the Federal Food, Drug, and Cosmetic Act and new state efforts to regulate abortion following the Supreme Court’s decision in Although FDA’s current policies allow for abortion medications to be prescribed via telehealth and mailed to patients, some state legislatures have moved to ban medication abortion drugs alongside surgical abortions, explain Staman and Shimabukuro in their report. They anticipate that the relationship between a state’s power to regulate the protection of public health and FDA’s role in determining the safety of prescription drugs will prompt the passage of federal legislation clarifying the extent to which federal regulations related to medication abortions preempt state measures.
• In an article in the Cornell Law Review, Greer Donley of the University of Pittsburgh School of Law argues that the negligible benefits of the mifepristone REMS are outweighed by its detrimental impacts on access to abortion and other aspects of reproductive health care. Outlining what Donley and others describe as FDA’s history of devaluing women’s health, Donley compares FDA’s regulation of mifepristone to that of Plan B, female sex drugs, and drug labeling for use in pregnancy. Donley advocates removing the mifepristone REMS entirely. She urges reproductive health scholars to demonstrate that the remaining requirements are unnecessary and encourages lawyers to continue challenging FDA’s statutory basis for imposing a mifepristone REMS.
• Although states have broader latitude to regulate the practice of medicine directly, they cannot impose policies that conflict with FDA requirements, according to Patricia J. Zettler of the Ohio State University Moritz College of Law and Ameet Sarpatwari of Harvard Medical School Center for Bioethics in an article published in The New England Journal of Medicine. Despite this limitation, states have long attempted to restrict medication abortion access. Zettler and Sarpatwari argue that such state laws encroach on FDA’s purview and that courts may therefore strike them down to promote public health. Although some fear that preemption challenges to state medication abortion restrictions risk undermining other important state and local regulations, Zettler and Sarpatwari highlight that state litigation efforts can complement FDA oversight and preserve the future viability of public health federalism.
• In an article published in the Guttmacher Policy Review, Megan K. Donovan, formerly of the Guttmacher Institute, argues that the politicized nature of abortion hinders advancements in telehealth. According to Donovan, policymakers must develop multistate solutions that adequately account for the complex variety of state laws restricting reproductive care resources. Certain state policies, for example, require in-person exams or specific relationships between providers and patients. Furthermore, some states distinguish abortion from other health services to limit avenues of public funding. To address this discrepancy, policymakers must ensure that abortion providers are included in telehealth-related grants, Donovan argues.
• In an article published in Contraception, Ushma D. Upadhyay and Daniel Grossman of the University of California, San Francisco, and Alice F. Cartwright of the University of North Carolina at Chapel Hill, examine the relationship between self-managed abortion—defined as terminating a pregnancy without medical supervision—and access to reproductive health resources. Upadhyay, Grossman, and Cartwright note that the deciding factors in study participants’ choice to self-manage their abortions included travel, finances, secrecy, and fear. When telehealth was unavailable, participants took herbs and supplements, ordered abortion pills online, or even sought potentially harmful physical methods to terminate their pregnancies. Upadhyay, Grossman, and Cartwright argue that states should repeal laws banning telehealth-based abortion care and that FDA should allow pharmacy access to abortion pills to reduce the potential harms of self-managed abortions.

IN THE NEWS

• President Joseph R. Biden announced his intention to nominate environmental and regulatory law scholar Richard Revesz to lead the Office of Information and Regulatory Affairs (OIRA). OIRA, which sits within the Office of Management and Budget, reviews and oversees the implementation of rules and regulations drafted by federal agencies. Experts predict Revesz’s past defenses of the rulemaking process suggest he would bring a moderate approach to the new role rather than pursuing large-scale reforms. In a press release announcing the decision, the Administration emphasized Revesz’s extensive legal scholarship “advocating for protective and rational climate change and environmental policies.”
• The federal court in Texas ruled against the U.S. Department of Health and Human Services and in favor of Braidwood Management, a Christian for-profit, finding that the Affordable Care Act’s PrEP coverage mandate violates the Religious Freedom Restoration Act. The mandate requires health insurers to provide coverage for preventative care, including PrEP, which prevents the contraction and transmission of HIV. The court found that the Affordable Care Act’s PrEP mandate violated Braidwood’s freedom of religious exercise due to the owner’s religious beliefs opposing same sex intercourse and view that providing PrEP coverage would be a sign of support for same sex intercourse.
• The U.S. Department of Veterans Affairs announced that it submitted an interim final rule that will allow the Department’s healthcare facilities to provide veterans and other beneficiaries access to abortion services. These services will include abortion counseling and, in cases involving rape, incest, or risks to the health of the veteran or beneficiary, abortion procedures. U.S. Secretary of Veterans Affairs Denis McDonough noted that the individuals served by the department “deserve to have access to world-class reproductive care when they need it most.”
• The Federal Aviation Administration (FAA) issued a final policy that requires aviation manufacturers to investigate and report any allegations of interference with safety inspections conducted through the Organization Designation Authorization program. The program allows industry employees to conduct and oversee certain inspections, such as certifying that design changes meet safety standards, on behalf of the FAA. The new policy requires anonymous surveys as part of an effort to eliminate conflicts of interest and encourage inspection independence.
• The Department of Homeland Security (DHS) issued a final rule that amended the public charge definition used in determining if an immigrant can enter the United States. A noncitizen is inadmissible if they are determined to be a public charge, a person likely to become dependent on government assistance. The rule clarifies that non-cash public benefits, such as Medicaid, cannot be considered in the agency’s public charge inadmissibility decision. U.S. Citizenship and Immigration Services director Ur M. Jaddou noted the agencies will work to “restore faith and trust with our immigrant communities, and eliminate excessive burdens in the application process.”
• The FCC released a notice of a potential incoming draft notice of proposed rulemaking intended to improve the security of emergency alert systems. If the FCC proceeds with a notice of proposed rulemaking, the proposed rules would require emergency alert system participants to report any system compromises and validate alerts that display on consumer devices. Jessica Rosenworcel, FCC Chairwoman, noted that due to the systems’ roles in alerting the public to weather crises and missing children, “it is critical that these public safety systems are secure against cyber threats.”
• The U.S. Consumer Product Safety Commission released a new safety standard for magnet sets to address the incidences of internal injuries from swallowing these magnets. The rule will require the magnets in these sets to be either too large for a person to swallow or weak enough in magnetism to lessen the risk of internal injuries if swallowed. The Commission noted that incidents of magnet ingestion have been increasing annually and urged individuals to discard the less safe magnets currently on the market to protect children from ingesting them.
• Lambda Legal and Southern Legal Counsel, in partnership with the National Health Law Program and Florida Health Justice Project, filed a lawsuit in a federal district court on behalf of four transgender plaintiffs challenging a Florida rule that prohibits the use of Medicaid to finance gender-affirming care. The rule could prevent thousands of Florida residents from receiving medical treatment of gender dysphoria. The plaintiffs argued the rule violates the U.S. Constitution, the prohibition on sex discrimination within the Affordable Care Act, and various Medicaid provisions requiring equitable medical services for all qualified individuals.

WHAT WE’RE READING THIS WEEK

• In a Journal of Financial Regulation working paper, University of Pennsylvania professors Brian D. Feinstein and Kevin Werbach examined the effects of cryptocurrency regulations on market trading volume. Feinstein and Werbach argued that their analysis of market data from several jurisdictions suggested that although announcements of regulatory actions have increased in recent years, there has been little to no effect on market trading activity. The authors concluded that apprehension about decreasing trade volume or significantly affecting prices should not be primary considerations for crypto regulatory decisions.
• In a Brookings Institution report, Andre M. Perry, senior fellow at the Brookings Institution, argued that the Biden-Harris Administration’s student loan cancellation program does not address many of the systemic issues facing borrowers. Perry argued that rather than using an income limit of $125,000 for eligibility purposes, wealth, defined as a person’s assets minus their debt, should be used to provide better opportunities for families who have not been able to grow or inherit wealth because of discrimination. Additionally, he pointed to the rise in costs of college tuition as one of the most significant issues that the Administration’s loan plan does not address. He proposed that the long-term solution is to provide a universal public option for four year colleges and address the issues of discrimination and tuition prices now instead of “kicking the can down the road.”
• In a Center for American Progress report, Maureen Coffey, a policy analyst at American Progress, and Rose Khattar, associate director at American Progress, argued that staff shortages in the childcare sector resulting from the pandemic will continue until better quality jobs emerge. Khattar and Coffey noted that these shortages harm the economy by forcing parents who are struggling to find childcare to leave the workforce or be less productive workers. Khattar and Coffey contended that ending the shortage will require Congress to increase the amount of funding given to states in grants for childcare programs. The authors also recommended that states ensure that the reimbursement grants they provide to childcare centers serving low-income families accurately reflect the true cost of care.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Richard Revesz, AnBryce Professor of Law and dean emeritus of New York University School of Law and President Biden’s nominee to head OIRA, emphasized the wide-ranging positive impacts of President Biden’s executive memorandum on modernizing the regulatory review process. Resevz contended that the memorandum promoted justice and equity in the rulemaking process by encouraging OIRA to take a more proactive role in encouraging agencies to enact socially beneficial regulations. Resevz asserted that the memorandum “opens the doors to significant reform while keeping the core architecture of regulatory review in place.”

Agency rulemaking can be a lengthy and resource-intensive process, and agencies sometimes turn to contractors for support. Some agencies use contractors, for example, to conduct research undergirding a rule, prepare regulatory impact analyses, facilitate meetings with interested persons, or process public comments that the agency receives.

By contracting out certain rulemaking-related functions, agencies can realize benefits such as lower administrative costs, greater flexibility to allocate limited staff resources, and access to topic-specific expertise or alternative perspectives.

Because rulemaking is a form of agency policymaking, however, agencies must ensure they do not contract out responsibility for deciding policy matters, making value judgments, or exercising discretion on behalf of the federal government. Such responsibilities are considered inherently governmental functions under federal law.

Agencies should also exercise heightened caution before contracting out other tasks that are closely associated with an inherently governmental function. Caution is needed to help ensure that contractors support, rather than supplant, agency decision making.

The Federal Acquisition Regulation, along with documents issued by the Office of Management and Budget (OMB) and its Office of Federal Procurement Policy, provides general guidance on what constitutes an inherently governmental function or closely associated tasks. But this guidance is opaque, and it can be difficult for agencies to determine which rulemaking-related functions fall within these legal categories. Agencies must also navigate tricky ethical and practical issues related to the use of contractors for rulemaking-related functions.

To address these issues and improve the effective use of and transparency surrounding contractors in rulemaking, the Administrative Conference of the United States (ACUS) recently adopted Recommendation 2022-1, Contractors in Rulemaking, which identifies best practices for agencies to use.

Agencies should first identify which rulemaking-related tasks are inherently governmental functions—such as the approval of a final rule—and those that are closely associated with inherently governmental functions—such as conducting regulatory impact analyses, providing feasibility studies, or drafting the regulation text or preamble. Agencies should adopt policies to ensure that agency employees do not contract out inherently governmental functions and to provide increased scrutiny when contracting out tasks that are closely associated with such functions.

Agencies should then assess how they manage contractors so as to prevent outsourcing inherently governmental functions. Agencies should also clearly delineate responsibilities between contractors and government employees and take steps to mitigate organizational and personal conflicts of interest. Just as the guidance from OMB on identifying a task closely associated with an inherently governmental function is opaque, there are not clear policies addressing the specific concerns of personal or organizational conflicts of interest of contractors in rulemaking.

In the interest of fostering transparency and efficiency, agencies should prepare and disseminate policies describing the mechanisms they have in place to prevent contracting out inherently governmental functions. These policies should include requirements for disclosing potential conflicts of interest and remedial steps the agency will take to address conflicts when they occur. When a contractor undertakes a rulemaking-related task that is closely associated with an inherently governmental function, the agency should also disclose that contractor’s role and identity, unless legally precluded from doing so.

By implementing these policies, agencies can ensure that the use of contractors in the rulemaking process does not overstep the inherently governmental function line and that ethical standards preventing conflicts of interest are maintained.

In addition to providing best practices for agencies, ACUS’s Recommendation also suggests that OMB consider assessing procurement practices across the federal government and afterwards preparing additional guidance on contractor-performed functions in the rulemaking process.

In the interim, it is up to agencies themselves—or the U.S. Congress—to determine where more stringent policies on the use of contractors in the rulemaking process may be needed. The recent ACUS Recommendation highlights best practices to help agencies act responsibly when using contractors in rulemaking.

Many federal agencies are running substantial legal risks by providing inadequate notice of significant regulatory changes. That is one of the conclusions we reached after a year-long study for the Administrative Conference of the United States (ACUS).

The goal of the study was to review how agencies provide notice of significant regulatory changes so that ACUS could decide whether to recommend improvements. We interviewed a broad range of interested parties: agency staff, regulated parties, regulatory beneficiaries, business groups, public interest NGOs, unions, micro-businesses, and others. Following deliberations informed by our study, ACUS adopted a recommendation earlier this year that provides guidance to agencies about how to provide more effective notice strategies.

We found that most agencies do a good job of complying with the Administrative Procedure Act’s requirement to publish proposed legislative rules in the Federal Register. According to our interviews, however, constructive notice by publication in the Federal Register—a government publication that runs 70,000 to 95,000 pages each year—is not sufficient to provide actual notice to many potentially interested parties. This is not just a matter of good governance. When agencies do not provide effective notice, but could easily do so using modern means such as email listservs to parties that they know have an interest, they face substantial legal risk.

The U.S. Supreme Court has held that constructive notice by publication is not always sufficient to comply with constitutional Due Process requirements. In Mullane v. Central Hanover Bank, a state law permitted a party bringing a lawsuit to provide constructive notice by publication. Although the bank had previously communicated with interested parties by mail, when filing an action in court it only provided constructive notice by publication. The Supreme Court held that when someone had previously communicated with an affected person by another more effective means and could easily do so again, constructive notice by publication does not satisfy the Due Process requirement to provide notice “reasonably calculated” to provide actual notice “under all the circumstances.”

One court of appeals has held that these principles apply when the executive branch announces regulatory policies that could reasonably be expected to affect the behavior of interested persons.

In addition, the late Justice Lewis Powell observed that it is “totally unrealistic” to assume that “more than a fraction” of people and organizations affected by a regulation—especially small contractors scattered across the country—would know that it was published in the Federal Register—or even know what the Federal Register is. He consequently expressed doubt that it would be constitutional to prevent judicial review of a regulation 30 days after publication.

Under this line of cases, other low-cost, modern, and more effective means of communication—such as email listservs or posting on websites, webinars, and news releases—may be necessary to supplement a rule’s publication in the Federal Register.

Still, although Federal Register publication is not always sufficient, in many cases it proves effective. For this reason, the U.S. Congress and the President have repeatedly directed agencies to make guidance documents available, including in the Federal Register. For instance, the Freedom of Information Act (FOIA) requires agencies to publish “statements of general policy or interpretations of general applicability.”

In addition, the Office of Management and Budget issued a Bulletin for Good Guidance Practices, asking agencies to publish significant guidance documents on agency websites. President Donald J. Trump issued two executive orders to make guidance more available. ACUS has also made recommendations to the same effect.

Although some agencies have complied with these transparency directives, most agencies have not honored these requirements in practice. Many agencies have taken the position that guidance documents are “available” if someone who knows about them can request them under FOIA. Unfortunately, as we note in our study, the courts have tolerated this broad non-compliance by holding only that if the agency did not make the guidance document available, the agency cannot rely on the document in court. That poses no real penalty to agencies because, at least in legal theory, guidance documents do not impose binding legal requirements.

Making guidance available on agency websites would be a simple way to inform the public and stimulate voluntary compliance, but agencies seem reluctant to do so. Some agencies did post guidance when the Trump Administration required them to do so by executive order but removed them again when the Biden Administration revoked the order.

Why are agencies allergic to making their guidance documents public?

One of our interview subjects solved the riddle by observing that former agency employees are more valuable in the private sector if they are aware of agency practices and policies that are not available to the public. This insight reflects a principle of organizational economics: Officials in any organization may be tempted to maximize their own personal welfare rather than the goals of the organization.

The legal risk we describe is one important finding from our research, although it is only part of what we learned. We also learned that larger groups with more resources are more satisfied with agency notice practices than are less-resourced groups. But we also found that even well-resourced organizations struggle with regulatory changes that emerge from guidance documents, adjudicatory decisions, and other material that agencies may not publish in the Federal Register.

Based on our research, ACUS adopted Recommendation 2022-2. The recommendation notes that target audiences for different types of agency notices differ, so there is no one-size-fits-all approach. Agencies should, however, proactively develop notice plans that identify potentially interested parties, evaluate techniques for providing effective notice, and include procedures and metrics for regularly evaluating the effectiveness of their procedures for providing notice. Agencies should then update their notice strategies based on this evaluation.

Some specific tools agencies should consider for providing better notice include:

• creating digests and user manuals that synthesize dispersed agency policies;
• publishing more material on agency websites;
• improving instructions on how to access information on agency websites;
• engaging with intermediary organizations; and
• increasing face-to-face engagement using webinars and video meeting technology.

Getting the word out about significant regulatory changes is not just a matter of reducing legal risks. Agencies benefit from providing actual—as opposed to merely constructive—notice, including increasing voluntary compliance and facilitating public participation and acceptance. By more effectively using the techniques of modern technology described above, agencies can ensure that many more interested parties receive actual notice of significant regulatory changes.

Across the globe, national authorities increasingly face regulatory challenges that are harder to solve unilaterally. Some issues—such as carbon emissions, taxation rules, and international mergers—urgently require concerted action because their impacts transcend borders.  Other issues—such as managing chemical hazards—concern mostly domestic impacts, but without international cooperation, the cost of tackling them is prohibitive.

International regulatory cooperation offers a set of tools for domestic governments to leverage international expertise to tackle transboundary and global issues.

For decades, central governments and independent regulators have collaborated in several ways, including regulatory partnerships, recognition of international standards, and mutual recognition agreements. There has been, however, a lack of discipline in embedding international regulatory cooperation horizontally and throughout the life of regulations from policy design to enforcement and ex post evaluation.

To facilitate international regulatory cooperation, the Organization for Economic Cooperation and Development’s (OECD) Ministerial Council recently adopted a recommendation to set a pathway for national governments to work together effectively on regulatory issues.

This recent recommendation supplements a 2012 OECD recommendation that outlined key principles to improve regulatory quality, such as regulatory impact assessment, multilevel coordination, transparency, and engagement. That prior recommendation also recognized, even a decade ago, that countries should “give consideration to all relevant international standards and frameworks for cooperation in the same field and, where appropriate, their likely effects on parties outside the jurisdiction.”

The 2022 recommendation calls for national governments to take three further steps to facilitate international regulatory cooperation.

First, the Council recommends that governments take a “whole of government” approach to international regulatory cooperation. Most regulatory cooperation efforts are decentralized initiatives of individual government agencies that have different levels of knowledge and resources to consider potential avenues for international cooperation. The recommendation calls for a holistic governance structure, backed by political leadership that coordinates activities to build a common understanding of international regulatory cooperation within each country.

Second, the Council advocates “recognizing international regulatory cooperation throughout domestic rulemaking.” This action item calls on domestic regulators to consider international regulatory cooperation during all policy development stages. When assessing international instruments to design regulation, or taking into account economic, social, and environmental impacts beyond jurisdictions, governments should consider international regulatory cooperation in all corners of policy activities.

Lastly, the Council recommends that international regulatory cooperation take place in all types of forums, whether bilateral, multilateral, or plurilateral. The goal should be to engage proactively in activities related to international regulatory cooperation. Whether by promoting good practices and innovation in regulatory policy, or collaborating in a variety of international fora, governments benefit from building trust and stronger technical relationships with international peers.

Echoing the recent OECD recommendation are a set of consolidated best practices on international regulatory cooperation that the OECD previously developed and which offer more practical guidance for governments to put principles into practice. These best practice guidelines also outline the benefits that international regulatory cooperation brings to national authorities, including economic efficiency, regulatory effectiveness in addressing challenges with international impacts, and administrative efficiency resulting from countries pooling intelligence and resources.

To understand the scope of international regulatory cooperation among OECD members, the OECD Regulatory Policy Outlook 2021 included indicators that measure specific aspects named in the three parts of the recent recommendation on international regulatory cooperation.

The Outlook shows that international regulatory cooperation is still a pending task in most countries’ better-regulation agendas. At the highest level, only six out of 39 countries plus the European Union have an explicit whole-of-government policy on international regulatory cooperation. Without this well-defined, transversal policy, it is difficult to have a coherent, high-quality practice of international regulatory cooperation among ministries.

The Outlook cites Canada’s Cabinet Directive on Regulation as an example of a good practice. This directive requires regulators to assess opportunities for cooperation with other domestic and international jurisdictions to reduce unnecessary regulatory burdens on Canadian businesses while protecting the health, safety, security, environment, and social and economic well-being of Canadians.

Not all the Outlook’s results were bad news. As for the second pillar—embedding international regulatory cooperation through domestic rulemaking—there was clear progress from OECD member countries. In 2017, only nine countries had a formal requirement to consider binding international instruments during rulemaking; four countries had to consider international standards; and eight countries had to consider other international instruments. In 2020, the numbers increased to 18, 11, and 15, respectively.

Nevertheless, virtually all OECD members have progress to make to ensure effective and systematic efforts at international regulatory cooperation in their country. Furthermore, there remains a gap in practical resources for policy makers to conduct international regulatory cooperation. Nineteen countries lack guidance to support regulators’ consideration of international instruments, and 20 countries do not have databases of international instruments to facilitate their consideration.

A number of countries have good practices in this area. For instance, Estonia introduced a requirement to consider international best practices during the process of drafting legislative proposals. Mexico established a section in its regulatory impact assessment template to assess impacts on foreign trade.

Countries are adopting international regulatory cooperation slower than other mechanisms for better regulation so there is a further need to build a strategic, whole-of-government policy that would trickle down to improve different aspects of international cooperation. The recent international regulatory cooperation strategy developed by the United Kingdom demonstrates the importance of this approach. This strategy includes practical aspects, such as improving coordination among national regulators and capacity building for public officials.

Economic interconnectedness is increasing at a faster pace and governments have never had so much technology infrastructure to coordinate better. Still, their policies are still largely fragmented. Countries must proceed by designing appropriate regulatory frameworks to enable regulatory cooperation to foster better alignment and prevent citizens and businesses from paying the costs of regulation behind borders. Hopefully, the recent OECD recommendation on international regulatory cooperation will pave the way to do so.

Federal agencies perform many functions and responsibilities. One of these functions is to help members of the public understand and apply the law. Increasingly, agencies provide this aid using automated legal guidance tools, such as chatbots, virtual assistants, and other automated systems.

For instance, when individuals have questions about their immigration status, they can turn to Emma, the U.S. Citizenship and Immigration Services’s computer-generated virtual assistant. When they have questions about their student loans, they can ask Aidan, the U.S. Department of Education’s virtual assistant that answers questions about federal student aid. And when they have questions about how personal and business activities affect their U.S. federal tax liability, they can consult with the Internal Revenue Service’s Interactive Tax Assistant to answer taxpayers’ personal tax questions.

There are a number of explanations for federal agencies’ increasing use of automated legal guidance tools. Under the Plain Writing Act of 2010, agencies are required to communicate complex legal rules and procedures to the public in “plain language.” Still, the formal law—comprising statutes, regulations, and judicial decisions—is often so complex that it is difficult, if not impossible, for most members of the public to comprehend.

Agencies also often lack sufficient resources to explain legal matters entirely through the use of human customer service representatives. Furthermore, agencies face pressure to provide comparable service with the private sector, where automated customer service tools have become commonplace. Automated tools appear to help agencies respond to a number of these problems by translating complex legal material and by making it more accessible.

As a result, several federal agencies are now using automated guidance tools to respond to tens of millions of inquiries regarding the law each year. Other agencies are considering introducing these tools as a supplement or replacement for human customer service representatives. Despite the prevalence of this shift, scholars who have studied technology and artificial intelligence at government agencies have not focused on agencies’ use of automation to explain the law.

To address the growing use of automated legal guidance tools by federal agencies, the Administrative Conference of the United States (ACUS) charged us with examining federal agency use of automated legal guidance and offering recommendations for reform.

In our study, we reviewed the use of automated guidance tools by all federal agencies and conducted in-depth research about two principal models of automated legal guidance. The first of these—a decision tree “answer” model—requires users to click through topics online to find answers to their questions. In contrast, the second model—the natural language “sorting” model—allows users to type their questions in natural language and then uses artificial intelligence to sort questions into categories and provide corresponding information.

We explored how these different models of automated legal guidance give answers that dovetail with or deviate from the underlying law. To learn more about how agency officials themselves think about such tools, we also interviewed federal agency officials who have direct responsibility for well-developed automated legal guidance tools in use by the federal government, or supervisory responsibility for guidance in the agencies that have developed such tools. In addition, we conducted interviews with the U.S. Government Accountability Office officials who work with agencies to develop such tools.

We found that automated legal guidance tools offer many benefits to agencies and to the public. They allow agencies to respond to public inquiries more efficiently than human customer service representatives, help the public navigate complex legal regimes, and, for certain inquiries, provide accurate responses based on the underlying law. Automated legal guidance tools also allow agencies to reveal their views to the public in an easily accessible format.

But automated legal guidance tools also have drawbacks. In their attempt to offer simple explanations about complex law to the public, automated legal guidance tools can give advice that deviates from the underlying law. This outcome occurs in both decision tree “answer” models and natural language “sorting” models. For instance, both models can portray unsettled law as unambiguous, add administrative gloss to the law, and omit discussion of statutory and regulatory exceptions and requirements. These deviations can mislead the public about how the law applies to their personal circumstances.

At present, agencies’ automated legal guidance tools also provide users with little notice of the underlying laws that the agency guidance relies on, and few to no warnings about the limited authority of the automated legal guidance or the inability of users to rely upon it as a legal matter. We also found that no federal agencies publish archives of changes made to automated legal guidance.

The potential for automated legal guidance to mislead members of the public, coupled with the inability of the public to rely on such guidance in a meaningful way, may exacerbate equity gaps between members of the public who have access to reliable advice through legal counsel and those who do not.

Interviews with federal agency officials also revealed that agency officials are not adequately apprised of some of the drawbacks of automated legal guidance. We heard little concern from agency officials about reliance issues because they took the position that members of the public were not relying on, or should not be relying upon, automated legal guidance. Agency officials held this belief in part because they believed that automated legal guidance just provided “information” and was not a source of law. This reaction was common even though millions of individuals turn to automated legal guidance annually to obtain answers about the law from federal agencies.

Automated legal guidance has an important role to play in advising members of the public about the law and, in any event, will be used by agencies in the future to explain the law to the public. Agencies must, however, be mindful of the potential drawbacks of such guidance, especially as uses of automated legal guidance expand.

Based on our report, the full ACUS assembly adopted 20 recommendations earlier this year on agency use of automated legal guidance in the following topic areas: design and management, accessibility, transparency, and reliance.

These recommendations include, among other things, a call for agencies to consider when and if a user’s good faith reliance on guidance from automated legal guidance tools should serve as a defense against penalties for noncompliance. The recommendations encourage agencies to allow users to obtain a written record of their communication with automated legal guidance tools, including date and time stamps.

In addition, agencies should explain the limitations of the advice that users receive when the underlying law is unclear or unsettled. To the extent practicable, agencies should provide access through automated legal guidance tools to the legal materials underlying the tools, including relevant statutes, rules, and judicial or adjudicative decisions. More generally, agencies should design and manage automated legal guidance tools in ways that promote fairness, accuracy, clarity, efficiency, accessibility, and transparency.

It is critical that agencies follow these best practices when implementing automated legal guidance tools. As our study revealed, automated legal guidance can enable agencies to convey complex law to the public efficiently. But it may also cause the government to present the law as simpler and clearer than it is—a phenomenon that current agency practices threaten to make worse, including by making automated legal guidance seem more personalized than it is.

In the end, our report and the ACUS recommendations provide agency officials with a guide to maximize benefits and minimize costs as they introduce automated legal guidance to help members of the public learn about and follow the law.

Twice each year, the Administrative Conference of the United States (ACUS)—an independent federal agency—issues recommendations for improvements to administrative and regulatory processes. This past June, ACUS published three new recommendations at its 77th plenary session. 

These new recommendations address how agencies should use automated technology to interact with the public, provide effective notice of regulatory changes to the public, and manage private contractors in the rulemaking process. 

The Regulatory Review invited ACUS staff and outside experts involved in developing these recommendations to share insights on the issues raised by these recommendations and their importance for improving administrative government. The ACUS recommendations highlighted in this series aim to guide agencies using automated tools that dispense information and offer guidance, improve public notice of regulatory changes, and distinguish appropriate roles for private contractors in the rulemaking process.

This series includes contributions from: Joshua D. Blank, University of California Irvine School of Law; E. Donald Elliott, Antonin Scalia Law School; Joshua Galperin, Pace Law School; Kazia Nowacki, ACUS; and Leigh Osofsky, The University of North Carolina at Chapel Hill School of Law.

Redesigning Automated Legal Guidance

September 6, 2022 | Joshua D. Blank, University of California Irvine School of Law, and Leigh Osofsky, The University of North Carolina at Chapel Hill School of Law

Agencies should take care when using chatbots, virtual assistants, and preset menus to share legal information.

Agency General Counsels, Beware

September 7, 2022 | E. Donald Elliott, Antonin Scalia Law School, and Joshua Galperin, Pace Law School

Federal agencies can face legal risk if they only provide constructive notice of regulatory changes through publication and FOIA “availability.”

Contractors in Rulemaking

September 8, 2022 | Kazia Nowacki, ACUS

Guidance from ACUS seeks to help agencies craft policies guiding their use of contractors in the rulemaking process.

The mission of the U.S. Securities and Exchange Commission (SEC) is to protect investors and to define what businesses need to tell the market. Public disclosure of company information forms the standard tool for accomplishing that mission, and the SEC has proposed broader disclosure in less familiar areas, such as climate impact.

But the SEC might expand beyond traditional disclosure, according to a comment letter by Stanford Law School professor and former SEC commissioner Joseph Grundfest. Grundfest argues that the SEC’s proposed prohibitions on certain contract terms in investment advising go far beyond disclosure and impose substantive regulatory obligations. This development presents multiple problems for the SEC, he argues.

When investors look to pool money into an investment fund, they sign a contract with an investment advisor to manage the fund’s investments and assets. This contract, known as the investment advisory agreement, controls the relationship between the fund’s investors and the fund advisor, such as how the advisor plans to invest the fund’s assets and how the fund will compensate the advisor for its services.

The SEC’s proposed rules would prevent investors and advisors from entering into certain arrangements when creating a private investment fund—a subset of funds that exist outside of most current SEC regulation under the Investment Company Act of 1940. For example, the rules would ban certain fee arrangements, agreements to limit liability for advisor services, and loans from private fund clients.

Grundfest notes that the investors likely to be affected by this rule would be sophisticated investors who know what to expect when negotiating an investment advisory agreement, even though one of the goals of SEC regulation is to protect unsophisticated investors. So these investors—who put money into venture capital firms, private equity funds, and hedge funds—would receive greater protections than unsophisticated investors, which Grundfest argues would create “internal contradictions” between the levels of protections for different kinds of investors.

As an example of how the rules would set up such contradictions, Grundfest uses the prohibition of contract terms that allow indemnification for “a breach of fiduciary duty, willful misfeasance, bad faith, negligence, or recklessness.” Grundfest asserts that U.S. state and federal law allow indemnification and let sophisticated investors take greater risks than unsophisticated investors. Some foreign jurisdictions also allow waiver of certain protections for “sufficiently sophisticated investors,” so the SEC could create a glaring break with market rules already set up by state legislatures, the U.S. Congress, and foreign nations.

Grundfest also argues that the proposed rules only limit the options available to these investors instead of protecting them from harm, moving the SEC into the business of regulating the substance of investment. Grundfest worries that this expansion will transform the identity of the SEC into a “merit regulator,” which would represent a departure from the agency’s history and philosophy.

SEC Chair Gary Gensler affirmed that the SEC provides a “core bargain” to investors: investors can take their own risks as long as accurate and complete disclosure informs investment decisions. But Grundfest predicts that a shift to merit-based regulation of contract terms would completely destroy that paradigm by restricting the ability of investors to make their own decisions “with full disclosure and absent fraud.”

Grundfest points out that, if the SEC expands into this role, it would need to manage special interest pressure and choose between different substantive regulations, rather than simply require disclosure. The SEC could also easily descend a slippery slope and start expanding these prohibitions to all investors, Grundfest warns. He argues that the SEC must acknowledge this possible shift and give fair notice to the market if it adopts the proposed rules.

Beyond concerns about the proposed rules and the possible effects on the SEC’s role, Grundfest expresses doubt about the SEC’s stated rationale for the proposed rules. Grundfest contends that “the Commission provides no evidence of market failure” in the market for investment advice and fund management.

The SEC relied on approximately two dozen past enforcement actions from the past two decades to justify the proposed rules, but Grundfest argues that these actions do not provide a sufficient basis for a shift away from disclosure. According to Grundfest, the SEC’s reliance on these enforcement actions appears without context and does not show the significance of advisory agreement terms. By Grundfest’s count, the financial recovery from the cited enforcement actions totaled only 0.16 percent of the SEC’s recoveries across the same time period.

Grundfest recommends withdrawing the proposed rules for reconsideration. He concludes that any similar, future rule needs to address the concerns he raises before becoming final.