Academic journal article Boston University Law Review

The Regulatory Lookback

Academic journal article Boston University Law Review

The Regulatory Lookback

Article excerpt

Technocratic judgments can have a cooling function. An insistent focus on the facts, and on the likely consequences of policies, might soften political divisions and produce consensus. Within the federal government, cost-benefit analysis is a prominent example of the cooling function of technocracy. But when undertaken prospectively, such analysis is sometimes speculative and can be error prone. Moreover, circumstances sometimes change, sometimes in unanticipated ways. For this reason, retrospective analysis, designed to identify the actual rather than expected effects, has significant advantages. The "regulatory lookback," first initiated in 2011 and undertaken within and throughout the executive branch, has considerable promise for simplifying the regulatory state, reducing cumulative burdens, and increasing net benefits. It deserves a prominent place in the next generation of regulatory practice. Recent history also suggests that it might well soften political divisions.

I. THE COOLING FUNCTION OF TECHNOCRACY

In 2013, the Federal Aviation Administration (FAA) eliminated certain restrictions of the use of electronic technologies - tablets, cell phones, and computers - at various stages of flight.1 The FAA's decision was widely hailed;2 it did not provoke partisan divisions. Across the United States, travelers agreed that the decision would significantly increase convenience and remove irritating restrictions that had significant aggregate costs.3 The scientific evidence also seemed clear: The restrictions that the FAA eliminated were pointless and did not contribute to safety.4 The FAA's deregulatory efforts, part of the continuing "regulatory lookback," created substantial benefits without imposing significant costs.

Amidst political polarization, it is often helpful to focus on facts - on what, exactly, is known or at least knowable. Careful assessment of facts, and projection of likely consequences, can have a cooling function. That assessment can help to reduce political divisions, even in periods of intense polarization. Under favorable conditions, technocrats inform and discipline politicians and their constituents by clarifying the stakes. To be sure, it is not impossible to argue with numbers, but it can be hard to do so, and once that particular argument begins, people tend to know what it is that they are arguing about. By itself, that is important progress.

From 2009 to 2012, I was privileged to serve as Administrator of the Office of Information and Regulatory Affairs. In that capacity, I learned that close attention to the human consequences, and indeed to costs and benefits, can help to promote both consensus and progress in domains in which both might otherwise prove difficult to achieve. President Obama's Executive Order 13,563,5 ratifying and intensifying the longstanding American commitment to careful analysis of costs and benefits,6 can be understood as an attempt to shift the attention of public officials away from intuitions, dogmas, political posturing, and interest groups, and toward what matters - the effects of potential policies on the human beings who are subject to them.7

Some people are likely to doubt that technocracy has or could have a cooling effect, insisting instead that debates about policies and regulations center not on facts but on values. When people disagree, for example, about a rule that would protect clean air or increase highway safety, their disagreement might turn on values, not evidence. Facts are not irrelevant, of course, but they are hardly the main event.

A great deal of evidence does show that values sometimes take priority.8 If people have certain predispositions, they will be inclined to believe that climate change is a serious problem, that nanotechnology is dangerous, that nuclear power is a bad idea, and that gun control saves lives. If they have different predispositions, they may be inclined to different beliefs. Predispositions with respect to values help to account for people's factual judgments on these and many other questions. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.