Today’s Ad Law Reading Room entry is “Designing Policymaking Mechanisms for Regulatory Dynamism,” by Julie E. Cohen, Nina-Simone Edwards, Meg Leta Jones, and Paul Ohm. Here is the abstract:

The administrative state is struggling to counter the harms of today’s information economy. Existing mechanisms for policymaking fall short both substantively and procedurally. Substantively, regulators face challenges translating decisions about public values—e.g., “protect sensitive personal information” or “avoid deceiving consumers”—into forms capable of being operationalized within networked digital processes and environments. Procedurally, the regulatory toolkit is reactive and poorly adapted to iteration and experimentation, and the results it produces—sometimes, results that are already outdated—can be difficult to revisit as the information available to regulators and the public evolves.

In this report, we develop a set of foundational principles for the design of a regulatory system that is nimble and effective. These include: jumpstarting the regulatory lifecycle by empowering regulators to act sooner, enabling experimental approaches to regulation, creating governance seams to facilitate regulatory oversight, mandating beneficial friction at key points in networked digital systems and processes, and extending regulatory authority in ways that mirror the scale and interdependence of digital supply chains.

Next, we propose an expanded regulatory toolkit that implements these principles. To act in ways that effectively address digital architectures, systems, and processes, regulators must be empowered to mandate data flow restrictions, to develop design requirements for both user-facing and technical interfaces, to require continuous adversarial testing of certain kinds of systems and processes, and to develop and impose human subjects oversight requirements adapted to the operation of digital architectures, services, and supply chains.

Last, we propose corresponding institutional changes, including new statutory authorities to replace the relevant parts of the Administrative Procedure Act (APA) and their corresponding agency implementations. As a baseline, regulators must be empowered to engage in streamlined, iterative rulemaking and equipped with the resources to conduct interdisciplinary problem framing and assessment. Additionally, regulators should have authority to develop what we call policy sandboxes—experimental regimes of enhanced oversight that operate via tunable parameters—and to develop premarket certification and/or licensing regimes for digital architectures, products and services.

This entry is a bit of a change of pace for the Ad Law Reading Room. Clocking in at a crisp 23 pages (not including the bibliography), “Designing Policymaking Mechanisms for Regulatory Dynamism” is styled as a “preliminary concept paper.” But don’t let its packaging fool you. The paper is an ambitious document that also serves to preview future work supported by the Redesigning the Governance Stack Project at Georgetown Law.

In a nutshell, the paper provides a concise articulation of the hurdles regulators face in dealing with the digital economy and sketches out a roadmap for potential reforms. It is those reforms—including amending the APA to enable more flexible and experimentalist forms of policymaking—that I found most interesting, and the authors do an impressive job identifying existing tools that could provide rough blueprints for broader changes. A cool paper on an increasingly timely set of issues.

The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.