Notice & Comment

A Final Word on Rebuilding Expertise (and Rebuilding Expertise), by William Araiza

*This is the final post in a symposium on William Araiza’s Rebuilding Expertise: Creating Effective and Trustworthy Regulation in an Age of Doubt. All posts from this symposium can be found here.

One can read blogs for bad reasons (shirking work), good reasons (learning), and, I suppose, no reason at all. There are excellent reasons for reading the contributions to the symposium the Notice-and-Comment blog has been hosting on my book, Rebuilding Expertise: Creating Effective and Trustworthy Regulation in an Age of Doubt. Not because of the book those posts address, but because of the quality of the contributions themselves.  Those posts carefully and generously, but also candidly, reflect on the book’s discussion of how Americans can restore their faith in their federal regulatory system. That task is of critical importance as Americans continue to confront regulatory challenges from the new and existential (climate change) to the new and potentially revolutionary (artificial intelligence) to the old and depressingly familiar (bank failures and train derailments).

The participants in this symposium engage my book and the topic it addresses from a variety of perspectives. Some, like Professors Shapiro and Funk, focus on the diagnosis, citing, among other phenomena causing or exacerbating our current predicament, neo-liberal winner-take-all economic policies and political attacks on regulation. Others, like Professors Murphy and Virelli, focus on issues presented by particular aspects of the book’s prescriptions—Professor Murphy discussing my critique of presidential control of agency policymaking (Chapter 5) and Professor Virelli considering my suggestions for altering judicial review (Chapter 7). Others, such as Professors Staszewski and Zoldan, build further upon my prescriptions regarding, respectively, reconceptualizing participation in the rulemaking process and ensuring that agency leadership both possesses and respects expertise. Finally, Professors HerzPrice, and Shah strike somewhat more pessimistic—or at least cautious—tones. Professor Herz (joined by Professor Funk) wonders whether expertise is really the issue with public trust in regulation. Professor Price worries that the fraught decisions agencies must make necessarily politicizes regulation beyond the point remediable by the book’s suggestions. Finally, Professor Shah questions the entire idea that expertise is desirable, arguing that in some contexts the imperative to value expertise leads to a degradation of the agency’s actual promotion of the public good.

These are all important points. They merit a brief response in this post closing out the symposium.

First, the diagnosis. I fully agree that our current malaise derives in large part from broader political, social, and economic developments. Law obviously does not exist in a vacuum, hermetically sealed from the society around it. Neither does regulation or regulatory policy or, for that matter, the public’s trust in regulatory outputs. There’s a reason public trust in government was remarkably high during the period Professor Shapirodescribes as “the great compression” of the post-World War II years. It’s also not surprising that, as Professor Funk describes, relentless attacks on regulators’ competence and virtue generate the distrust my book addresses, especially when regulators wield decades-old statutes, enacted to solve different problems, to impose regulation that is often perceived as intrusive and burdensome.

The question is what those dynamics cause and how those effects can be reversed or at least mitigated. Professor Funk argues that the problem is not, as the book’s title suggests, an absence of expertise, but instead a lack of effective regulation. I take the point; for example, it’s possible for expertise to exist within the system but for political pressures to frustrate regulators’ attempts to use their skills to the fullest extent. Still, attacks on the civil service and the over-use of contractors do have the effect of causing that expertise to atrophy. The problem is a multi-pronged one.

Second, the prescriptions. Most of Rebuilding Expertise concerns itself with offering suggestions for improving regulatory outputs, by strengthening the federal regulatory apparatus, increasing (to an appropriate degree) its autonomy, and rethinking the influence other actors exert on it. I’m pleased that many of the posts recognized that those prescriptions aim at correcting the imbalance between political and expertocratic imperatives weighing on agency action. It’s the proper balance that matters. As Professor Herz’s post notes, “expertise is an essential but incomplete component of effective regulation.” 

In support of that basic truth, I appreciate Professors Murphy’s and Virelli’s comments on, respectively presidential control and judicial review of agency outputs. Both of their posts raise helpful points about those phenomena, and offer either stronger versions of my critiques (Professor Murphy) or useful warnings about the limits of my suggestions (Professor Virelli). Along the same lines of constructive engagement, it was gratifying to read Professors Staszewski’s and Zoldan’s suggestions for building on my proposals by offering ideas about, respectively, increasing politicians’ roles in the notice-and-comment rulemaking process and, conversely, creating expertise-focused statutory qualifications for high agency positions. Interestingly, those two proposals point in what seem at first blush to be opposite directions: respectively, increasing the role of politicians (and thus politics) in regulation, and increasing the role of expertise at the top (political) echelons of the agencies. But their proposals are not two ships crossing in the night. Instead, they both seek, in their own ways, to entwine political responsiveness and expertise in ways that buttress the book’s thesis, recognized by Professor Staszewski—namely, a thesis that “articulates and defends” “a middle ground where politics and expertise both have legitimate roles to play in effective regulation and where they are properly balanced against one another.” I take his and Professor Zoldan’s proposals as friendly amendments to those the book offers to find that elusive middle ground.

But, intriguing suggestions like these notwithstanding, there are legitimate reasons to wonder about the book’s focus. As Professors Herz and Funk suggest, perhaps the problem is not—or not only—the lack of regulatory expertise. Perhaps, as Professor Herz offers, the public views bureaucrats not as expert regulators but as service personnel, with predicably negative effects when the services rendered harm persons’ private interests. Perhaps, as Professor Price wonders, politics today is simply too polarized for the effective use of expertise when that use ends up reinforcing one side’s political priors and subordinating the other’s (often with the same factions ending up consistently on one side or the other of this divide). As Professor Price observes, in today’s politics, “expertise itself a divisive rather than unifying concept.” And, perhaps most fundamentally of all, as Professor Shah suggests, expertise, at least as it is practiced in the real world, may end up harming, not promoting, the public good.

These critiques are fair. Indeed, as the book makes clear, politics does indeed get in the way of effective regulation (Professor Funk’s preferred term for the goal at which the book aims). It may be that political pressures are simply too powerful, at least given our current politics, for the book’s proposals (or any others) to be completely successful. It may also be that, at least when resources are scarce, a focus on expertise leads, as Professor Shah contends, to agency short-cuts whose burdens fall, predictably, on powerless people and communities. The omnipresence of such constraints makes it highly likely that a pursuit of pure expertise, to the exclusion of a recognition of fairness and equity goals in regulation, risks creating the outcomes she critiques.

Nevertheless, concerns of this final sort simply reinforce the basic point of the book. Expertise is not an end in itself. As the book’s subtitle suggests, the ultimate goal is “creating effective and trustworthy regulation.” Professor’s Herz’s and Price’s posts illuminate that, to continue with the subtitle, we are indeed living in “an age of doubt.” But that fact just makes the task of promoting expertise—and thus expert regulation—all the more urgent.

Thanks again to the wonderful posts contributed by the participants in this symposium. Thanks as well to the Notice-and-Comment blog, and to Elaine Hou and Jacob Wirz in particular, for their help in making this online symposium the success I hope readers have concluded it to be. I look forward to continuing the conversation.

William Araiza is the Stanley A. August Professor of Law at the Brooklyn Law School.

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