ML: Navigating the Regulatory State (Petersen)
M 5:30PM - 8:15PM
Silverman Hall 240B
Masters in Law
As we approach 2021, it’s hard to imagine anyone who is not in some way touched by the ‘Regulatory State,’ however defined. By what criteria should the FDA allow ‘fast track’ approval for a Covid -19 vaccine? Should the EPA reengage on climate issues? Or are these issues better addressed by states, each as they see fit? Should content on the internet be more regulated? Are greater restrictions on immigration appropriate? The goal of the course is to equip students to understand, navigate and succeed in the 'Regulatory State,’ whether from inside or outside of government, in a system where science, policy, and law interact over some of society’s most complex problems. Most products, technologies and commercial activities are subject to a broad array of federal and state regulations aimed at assuring health and safety (e.g. EPA, OSHA, FDA); fair and efficient markets (e.g. the SEC and FERC); and progress toward other public policy goals set by Congress and state legislatures. Meanwhile, certain businesses once viewed as ‘natural monopolies,’ such as segments of the energy, water, transportation, and other utility sectors, whose rates and other terms were once entirely set by government agencies, have been partially ‘deregulated’ in some jurisdictions (e.g. gas and electricity). Governments’ exercise of regulatory power is fraught with controversy. Some regard particular regulations as unnecessarily restrictive on business or personally intrusive, while to others such regulations are necessary to ensure that health and safety is protected, or that market imperfections in critical sectors are addressed. Additionally, each of the most recent appointments to the U.S. Supreme Court have expressed reservations about the power and discretion accorded to administrative agencies today. In sum, the ‘Regulatory State’ is in a state of flux. Students will learn how legal, policy, institutional, and analytic considerations inform the scope, design, stringency, transparency, and enforcement of regulations. The class will emphasize how regulatory agencies exercise discretion found in authorizing legislation to reduce risks or otherwise address market inadequacies, while being mindful of distributional equities ('winners' and 'losers'). Major themes in the course will include: - How do we determine whether regulation is warranted, as a replacement for or adjunct to common law remedies - How the regulatory state fits within a Constitutional framework (issues of jurisdiction, delegation and pre-emption) - The quasi legislative, judicial, and executive functions of agencies - How agencies set their agendas, make rules, analyze costs and benefits, and involve experts and the public in the regulatory process - How OMB, Congress, and the courts (and their state counterparts) exercise control over regulatory agencies - How different regulatory designs attempt to balance the often-conflicting goals of efficiency, equity, simplicity, and flexibility - How agencies enforce their regulatory mandates “on the ground.” Lectures and discussion will feature practical lessons from the instructor's years as an attorney for the U.S. Environmental Protection Agency, as general counsel for several energy-related companies, as chairman of a municipal planning commission, and as the environmental practice leader at an international law firm. Written course materials will include selections from The Regulatory State (Bressman, Rubin, & Stack) along with legal, policy, and scientific articles on regulation. There will also be several guest lectures. JD, LLM, and LLCM students are not permitted to take this class.
Administrative and Regulatory Law Learning outcomes: Demonstrate a core understanding of administrative and regulatory law and the administrative process, including the role of statutory authorization and work of administrative agencies; Perform legal analysis in the context of administrative and regulatory law; Communicate effectively on topics related to administrative and regulatory law; Demonstrate an understanding of the role administrative and regulatory law play in our legal system and in society as a whole.
"The Regulatory State" by Lisa Schultz Bressman, Edward L. Rubin, & Kevin M. Stack