Entrepreneurial Administration

A core failing of today’s administrative state and modern administrative law scholarship is the lack of imagination as to how agencies should operate. On the conventional telling, public agencies follow specific grants of regulatory authority, use the traditional tools of notice-and-comment rulemaking and adjudication, and are checked by judicial review. In reality, however, effective administration depends on entrepreneurial leadership that spearheads policy experimentation and trial-and-error problem-solving, including the development of regulatory programs that use non-traditional tools. Entrepreneurial administration takes place both at public agencies and private entities, each of which can address regulatory challenges and earn regulatory authority as a result. Consider, for example, that Energy Star, a successful program that has encouraged the manufacture and sale of energy efficient appliances, is developed and overseen by the Environmental Protection Agency (EPA). After the EPA established the program, Congress later codified it and, eventually, other countries followed suit. By contrast, the successful and complementary program encouraging the construction of energy efficient buildings, the well-respected LEED standard, is developed and overseen by a private organization. After it was developed, a number of governmental authorities endorsed it and have encouraged LEED-certified construction projects with both carrots and sticks. Significantly, while neither the Energy Star nor the LEED program were originally anticipated by any regulatory statute, both have had a tremendous impact. The Energy Star and LEED case studies exemplify the sort of innovative regulatory strategies that are taking root in the modern administrative state. Despite the importance of entrepreneurial administration in practice, scholars have failed to examine the role of entrepreneurial leadership in spurring policy innovation and earning regulatory authority for an agency (or private entity). In short, administrative law needs a richer and more textured account of agency action, why entrepreneurial leadership matters in government, and how agencies should operate. This Article explains that the conventional view of agency behavior — either following the specific direction of Congress or the President to use notice-and-comment rulemaking or adjudication processes — does not adequately portray how public agencies and private entities develop innovative regulatory strategies and earn regulatory authority as a result. In particular, this Article explains how governmental agencies like the EPA or private entities like the Green Building Council (which oversees the LEED standard) depend on entrepreneurial leadership to develop experimental regulatory strategies. It also explains how, in the wake of such experiments, legislative bodies have the opportunity to evaluate regulatory innovations in practice before deciding whether to embrace, revise, reject, or merely tolerate them. This Article highlights the importance of entrepreneurial leadership in government, providing a number of examples of emerging regulatory experiments and suggesting how Congress should evaluate such experiments. This discussion explains how entrepreneurial leadership and a culture of experimentation and trial-and-error learning is necessary to develop innovative strategies and overcome the pressure to manage the status quo. In so doing, the Article underscores how policy entrepreneurship is integral to agency effectiveness, an important corrective to public choice theory, and a missing piece of modern administrative law scholarship

The Consequences of Repealing Health Care Reform in Early 2013

This Article evaluates the consequences of an early 2013 repeal of the enacted Health Care Reform. We consider the Act\u27s significant provisions that will have taken effect by 2013. For implemented provisions, we review their current effect on coverage, costs, and care. We then evaluate the practical consequence of the loss of those provisions. For provisions that have not yet taken effect, but will before 2013, we evaluate their projected effects in considering the consequences of repeal. Finally, for provisions that will not take effect before 2014, but where significant funds and effort will be expended prior to 2014, we evaluate those costs in considering the consequences of repeal. We conclude that the loss of many provisions would cause a significant impact. However, not all segments of the population would be equally affected by a pre-2014 repeal. Americans with basic coverage stand to lose the most. For example, changes such as the extension of dependent coverage and restrictions on annual limits have greatly increased the value of basic coverage for those who have it. Medicare recipients would similarly stand to lose from a 2013 repeal. But for those unable to afford basic comprehensive coverage, a 2013 repeal would comparatively have less effect-though a repeal after 2014 would significantly impact this group

Death and Paperwork Reduction

How does government value people\u27s time? Often the valuation is implicit, even mysterious. But in patches of the federal administrative state, paperwork burdens are quantified in hours and often monetized. When agencies do monetize, they look to how the labor market values the time of the people faced with paperwork. The result is that some people\u27s time is valued over ten times more than other people\u27s time. In contrast, when agencies monetize the value of statistical life for cost-benefit analysis, they look to how people faced with a risk of death subjectively value its reduction. In practice, agencies assign the same value to every statistical life saved by a given policy. This Article establishes these patterns of agency behavior and suggests that there is no satisfying justification for them. Welfarist and egalitarian principles, along with the logic of statistical life valuation, lean against the use of market wages to monetize a person\u27s time doing government paperwork. The impact of this practice might be limited, given the modest ambition of today\u27s paperwork reduction efforts. But time-related burdens—and benefits—are key consequences of government decisions in countless contexts. If we want to scale up a thoughtful process for valuing people\u27s time in the future, we will need new foundations