We dive into the legal nature of the regulatory state with Ethan Leib of Fordham Law School. In what sense is the making of regulatory policy, whether on the environment or on net neutrality, a legal process? Should regulatory agencies adhere to precedent or otherwise be bound by law-like doctrines? We learn about the White House’s influence over rulemaking through OIRA and question how OIRA should function and what legal principles should govern it.

This show’s links:


Ethan Leib’s faculty profile and articles
This Week in Law 263: More Bodies on Blackacre, on which Joe and Christian were guests
Nestor Davidson and Ethan Leib, Regleprudence - at OIRA and Beyond
Mark Tushnet, Legislative and Executive Stare Decisis
The nuclear option
About OIRA, the Office of Information and Regulatory Affairs, and its resource page
The major executive orders concerning federal regulation and the role of OIRA
The repository of OIRA return letters
Cass Sunstein, The Office of Information and Regulatory Affairs: Myths and Realities
Catherine Sharkey, State Farm 'with Teeth': Heightened Judicial Review in the Absence of Executive Oversight
Julius Cohen, Towards Realism in Legisprudence and Legisprudence: Problems and Agenda
Lon Fuller, The Morality of Law
Carol Rose, New Models for Local Land Use Decisions
Cass Sunstein’s memorandum for agency heads, Disclosure and Simplification as Regulatory Tools
Office of Management and Budget, Circular A-4
Public comments on the Obama administration’s proposal to revise the basic regulatory executive order (including comments from Martha Nussbaum, Eric Posner, Gillian Metzler, Richard Revesz, Michael Livermore, and Peter Strauss)
Ethan Leib and David Ponet, Fiduciary Representation and Deliberative Engagement with Children
Evan Criddle, Fiduciary Administration: Rethinking Popular Representation in Agency Rulemaking
Special Guest: Ethan Leib.