On Tuesday, June 1, members from Advocacy’s interagency team attended the Sixth Annual Administrative Law and Regulatory Practice Institute Rulemaking Conference. The event, co-sponsored by the American Bar Association’s Section of Administrative Law and Regulatory Practice and the Center for the Study of Rulemaking at American University, featured several panel discussions on recent developments in rulemaking and other regulatory issues.
OIRA Administrator Cass Sunstein gave the opening address, which among other issues discussed the importance of “empirically informed regulation,” and the benefits of considering behavioral economics during rulemaking. He also reiterated the importance of cost benefit analysis in the rulemaking process, and noted the importance of establishing a cooperative working relationship with other agencies in order to effectuate a thorough analysis. He also stressed the importance of transparency in the rule review process.
Panelists, including Curtis Copeland from the Congressional Research Service, and Michael Fitzpatrick, the Assistant Administrator of OIRA, discussed the current operation of regulatory review under Executive Order 12866 as well as the Congressional Review Act. They also noted the ongoing struggles, among agencies and courts, over distinguishing legislative rules from interpretive rules. The following panel focused on issues that arise when “hybrid” rulemaking, a middle ground between formal and informal rulemaking, is utilized. The panel examined the possible benefits of moving toward a more formal model.
Technological advancements and challenges in rulemaking also served as a panel topic. Cynthia Farina, a Professor of Law at Cornell University, provided an update on Cornell’s e-Rulemaking Initiative. Carl Malamud, founder and president of Public.Resource.org, as well as other panelists, outlined current technological limitations as well as highlighting some news tools that could be utilized in order to enhance rulemaking.
The final panel of the day dealt with rulemaking and the courts. Judge Brett Kavanaugh, and Chief Judge David J. Sentelle, both from the U.S. Court of Appeals for the D.C. Circuit, offered tips on becoming an effective advocate before the court. The program also included a luncheon presentation by Paul R. Verkuil, Chairman of the recently revived Administrative Conference of the United States.
For a full list of speakers and topics please see: http://new.abanet.org/calendar/6th-annual-administrative-law-and-regulatory-practice-institute/Pages/default.aspx