Regulatory Horcruxes

The regulator that designs and first implements a federal regulatory program does not always have the ability to control the timing and process of how that regulatory program will, in this Symposium’s language, “exit.” As the 2016 election has demonstrated, the initiating regulator cannot necessarily plan in advance for the program’s expiration, diminution, or scaling back. A successor instead wields this power. Whether one views this as a terrible thing or a salutary feature of democracy depends in part upon one’s relationship to the regulatory status quo, but also implicates broader questions about policy stability and democratic accountability. At the very least, however, this fact raises several important questions about strategic regulatory design. First, is it possible to insulate or harden regulatory programs from successor exit? And second, when, if ever, would this be a good thing? This Article offers a systematic account of how regulators can make regulatory exit more challenging by looking outward, beyond the walls of a single, primary federal agency to other potential regulators or co-regulators, including secondary federal agencies, the states, and private actors. This Article identifies as a potential antidote to regulatory exit a constellation of strategic techniques that I call regulatory horcruxes—much like the horcruxes Lord Voldemort created by placing portions of his soul into multiple external objects in order to ensure his immortality. An initiating regulator, be it Congress or a federal agency, can use such horcruxes in an effort to make successor exit more difficult by splitting programs beyond the walls of a single federal agency into other institutions. This Article first offers an analytical framework laying out five primary types of horcrux. It then examines horcruxes from a normative perspective, evaluating the comparative benefits and costs of their use in terms of their potential impact both on the durability of regulatory programs and on the quality of democratic deliberation. It acknowledges that horcruxes are an imperfect solution. Although dispersal or fragmentation of regulatory authority may insulate a program from deregulatory pressure, the fragmented regulatory program may exist in a weakened form that cannot accomplish as much as more direct, centralized regulation can. The Article concludes by offering a research agenda, including suggestions for further empirical research

The epistemic challenges of CTOs

Controversy around the use of community treatment orders (CTOs) arises in part from their ambiguous evidence base. Recent research has provided valuable new insights into the effects of CTOs, while also highlighting the critical importance of first understanding what CTOs are and what they are meant to achieve. A genuine public discourse on the significance of CTOs will have multiple perspectives. This necessitates a more pluralistic approach to constructing the necessary knowledge of CTOs to enable communities to make sound decisions about their use. Despite the controversies surrounding their efficacy, the utilisation of community treatment orders (CTOs) is increasing worldwide.1,2 Debates about ethical and human rights issues relating to CTOs span all jurisdictions, whether CTOs are a recent development (as in the 2007 Mental Health Act provisions in England and Wales) or more established (as in the provisions first introduced in the Australian state of New South Wales in 1990). These debates concern the principle of using coercion in clinical practice, the impact of CTOs on the autonomy and privacy interests of individuals, and the provision of appropriate mental healthcare that is not reliant on unnecessary compulsion to compensate for under-resourced community services.3–6 Such issues are common to all jurisdictions, despite the variations in legislative provisions for CTO systems, which include differences in the criteria for applying CTOs and the powers given to healthcare providers. These concerns are highlighted by the significant variation in the rates of use of CTOs around the world,7 which has prompted concerns about their use being determined by various factors besides clinical need.8,9 The controversy arises, in part, from the inconsistent results of research into CTOs, which has failed to demonstrate positive clinical outcomes and which reveals that patients, carers and clinicians have mixed views about CTOs.4,10,11 Although existing research into CTOs may be accurately representing variation and inconsistencies in their application, the heterogeneity and inadequacies of the evidence base10,12 make it difficult to draw conclusions from the published literature. Nevertheless, it is important to take proper account of the data that do exist

Cuba versus CIA

https://stars.library.ucf.edu/prism/1563/thumbnail.jp

Not the Only Game in Town: The Complementary Roles of Public & Private Environmental Governance

This Brief focuses on ways in which private firms are adopting tools that mirror public law instruments—such as internal carbon fees (similar to a public carbon tax) and private cap-and-trade schemes (like public emissions trading schemes)—to reduce greenhouse gas emissions and address climate change. These private case studies suggest that significant progress in reducing emissions can come from embedding emissions reduction programs into core business strategy. Moreover, these case studies indicate that climate change, as a global issue, requires public regulators to recognize the potential contributions of global multinational firms.https://repository.upenn.edu/pennwhartonppi/1031/thumbnail.jp

Summary: Business Innovation Creates Policy Disruption

New forms of business in the sharing economy, and new technologies like autonomous vehicles, have the potential to “disrupt” existing regulatory structures. This seminar examined the challenges facing regulators and legislators, who must respond so as to both (a) promote innovation and (b) protect the public interest.https://repository.upenn.edu/pennwhartonppi_bschool/1009/thumbnail.jp

Advisory Nonpreemption

We are living in an era of dramatic and unpredictable technological and business innovation. Federal agencies have been at the forefront of updating substantive legal rules to meet new challenges not originally contemplated by Congress. Yet some innovations—for example, autonomous vehicles—also upset longstanding allocations of authority between the federal and state governments. Significant uncertainty about whether local or national concerns will predominate as innovations develop requires temporary flexibility in allocations of regulatory authority. This Article identifies a new method that federal agencies can use to promote such flexibility before the initiation of a rulemaking or before Congress acts to address such disruptions—advisory nonpreemption. Ordinary preemption shifts the balance of power from the states to the federal government. Advisory nonpreemption has the opposite effect. Advisory nonpreemption can open a dialogue among the federal government, the states, interest groups, and industry not only about the best substantive rules to address innovation, but who ought to govern and enforce those rules. Most importantly, advisory nonpreemption is a method of inserting de facto dynamic jurisdiction temporarily into an existing dual federalism scheme. This Article both describes advisory nonpreemption and defends its use as a normative matter using autonomous vehicle safety regulation as a case study. The approach’s costs in temporary regulatory uncertainty are outweighed by its benefits in promoting innovation, transparency, and the public interest

A study of special line intensities and excited atom populations in a hollow cathode discharge

Discharge processes within hollow cathode lamps with cylindrical mild steel cathodes and neon carrier gas were investigated for a range of discharge currents and different neon pressures

The Military-Environmental Complex

Although the military’s operations are largely exempt from environmental laws and regulations when those laws conflict with its national security mission, the military has important incentives to reduce its reliance on fossil fuels and combat climate change. If nurtured properly, the military’s extensive undertaking to improve its sustainable energy use and reduce demand for fossil-fuel-derived energy has the potential to become one important tool in the environmental regulatory toolkit.https://repository.upenn.edu/pennwhartonppi/1014/thumbnail.jp