Notice & Comment

Bull & Ellig on Improving Regulatory Impact Analysis via Judicial Review (AdLaw Bridge Series)

Earlier this month the Center for the Study of the Administrative State hosted a terrific public policy conference on the Hill entitled The Time for Regulatory Reform in Congress. We discussed most of the  legislative regulatory reform proposals pending in Congress as well as a number of additional ideas that scholars have suggested. Video of the panels and Senator Lee’s keynote address is available here.

In a new paper entitled Judicial Review of Regulatory Impact Analysis, Reeve Bull (ACUS Research Chief) and Jerry Ellig (Mercatus Center Senior Research Fellow) advance another legislative proposal that is worth serious consideration: to amend the Administrative Procedure Act to facilitate effective judicial review of regulatory impact analysis.

Here’s the abstract:

Regulatory agencies often produce mediocre economic analysis to inform their decisions about major regulations. For this reason, Congress is considering proposals that would require regulatory agencies to conduct regulatory impact analysis and subject it to judicial review. For judicial review to work, judges must be able to verify agency compliance with quality standards even if they are not experts in the subject matter the agencies deal with. This article demonstrates that courts could effectively review the quality of agencies’ regulatory impact analysis if they were given more concrete statutory guidance on what a regulatory impact analysis must include and the stringency with which a court will review that analysis. We propose a regulatory reform that would accomplish this goal: amend the Administrative Procedure Act to specify the main elements a regulatory impact analysis must include and to clarify the standard of review by requiring that agencies use the best available evidence in their analysis.

Definitely go read the full paper here.


This post is part of the Administrative Law Bridge Series, which highlights terrific scholarship in administrative law and regulation to help bridge the gap between theory and practice in the regulatory state. The Series is further explained here, and all posts in the Series can be found here.

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