The OIRA Module: Published Research

Editor’s Note: See also  ABA AdLaw Section Summer Brownbag Series: Regulation of Social Media?

From: The Regulatory Review

Jeff Kosseff

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The second component, which has received less focus, states that online services shall not be held liable due to “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”

Editor’s Note: See Management of the Administrative State.

From: Brookings Institution

Sharece Thrower

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From: The Regulatory Review

Cary Coglianese

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When the U.S. Federal Trade Commission undertook a review of its performance some years ago, its Chairman recommended precisely such a portfolio approach: “The agency should view all of its matters as part of a portfolio that should be balanced across low-, medium-, and high-risk activities.” From an efficiency standpoint, of course, the balancing of risks per se is not what matters; the key is to balance the benefit-to-cost returns of regulating them, so as to maximize overall net benefits across the full suite of the regulator’s actions. The precise balance that will be efficient for any given regulator will vary based on the actual costs and benefits due to the types of problems and economic circumstances the regulator confronts.

From: Duke/DeWitt Wallace Center for Media & Democracy

Philip M. Napoli

ABSTRACT

From: The Regulatory Review

Aaron L. Nielson

The Administrative Conference of the United States recommends greater transparency about agency procedure.

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Last year, the Administrative Conference of the United States (ACUS) took steps to begin simplifying the adjudicatory process. In particular, ACUS issued a recommendation about steps agencies can take to ensure that the procedural requirements governing adjudications are accessible, with a special focus on agency websites. In the Internet age, agencies can and should take steps to make key procedural materials more readily available to the public.

Editor’s Note: Read CRE’s white paper Paperwork Reduction Act Certifications: The Sarbanes-Oxley for the Public Sector.

From: The Regulatory Review

Sierra Blazer and Cary Coglianese

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Studies indicate that Sarbanes-Oxley’s certification requirement has achieved its end of preventing fraud. In a 2006 survey of auditors, for example, 68% reported that the requirement improved the integrity of financial reporting. One of the auditors noted that previously “it was very easy for people to say … I wasn’t involved in that, I didn’t know anything about that.”

Editor’s Note: See also OIRA: Past, Present and Future (draft).

From: The Regulatory Review

Stuart Shapiro

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OIRA review fulfills a critical function from the perspective of a President. Fairly or not, Presidents get credit and blame for the actions of government agencies. No matter whether they are Democrats or Republicans, liberals or conservatives, Presidents face immense incentives to exercise careful oversight over agencies. Both OIRA review and, to a lesser degree, cost-benefit analysis help satisfy that demand for presidential oversight.

From: Center for Regulatory Effectiveness via SSRN

Bruce Levinson

Abstract

Virtually every aspect of the 340B drug discount program has been evaluated except its effectiveness at improving healthcare access for medically underserved populations. This paper seeks to fill this information gap by using federal data to measure changes in the ability of impoverished and uninsured patients to afford needed healthcare, relative to the general population. The paper finds that the 340B program is harming the relative affordability of needed prescription drugs, needed medical care, and needed dental care for the most medically underserved communities. The causes of this decline in affordability is traced to a three-fold process that 340B hospitals are using to take maximum advantage of the program’s financial incentives.

From: Colorado Technology Law Journal via SSRN

Ryan Hagemann, Jennifer Skees, Adam D. Thierer

From: Notice & Comment | A Blog from the Yale Journal on Regulation and the ABA Section of Administrative Law & Regulatory Practice

William Funk

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Despite the language of the CRA that clearly includes guidance documents as rules subject to its provisions, many, if not most, agencies did not send guidance documents to the House and Senate as the CRA required. The Government Accountability Office opined in 2017 that guidance documents were subject to the CRA, and at least two district courts have entertained suits claiming that an agency violated the CRA by not submitting guidance documents to Congress. The new OMB memo specifically notes that guidance documents are subject to CRA requirements.