Postscript | Administrative LawThe Supersecretary in Chiefby Kathryn E. Kovacs* Vol. 94, Postscript (November 2020)94 S. Cal. L. […]
This Article examines what we term “regulatory entrepreneurship”—pursuing a line of business in which changing the law is a significant part of the business plan. Regulatory entrepreneurship is not new, but it has become increasingly salient in recent years as companies from Airbnb to Tesla, and from DraftKings to Uber, have become agents of legal change. We document the tactics that companies have employed, including operating in legal gray areas, growing “too big to ban,” and mobilizing users for political support. Further, we theorize the business and law-related factors that foster regulatory entrepreneurship. Well-funded, scalable, and highly connected startup businesses with mass appeal have advantages, especially when they target state and local laws and litigate them in the political sphere instead of in court.
Finally, we predict that regulatory entrepreneurship will increase, driven by significant state and local policy issues, strong institutional support for startup companies, and continued technological progress that facilitates political mobilization. We explore how this could catalyze new coalitions, lower the cost of political participation, and improve policymaking. However, it could also lead to negative consequences when companies’ interests diverge from the public interest.
Congressional enactments and executive orders instruct agencies to publish their anticipated rules in what is known as the Unified Agenda. The Agenda’s stated purpose is to ensure that political actors can monitor regulatory development. Agencies have come under fire in recent years, however, for conspicuous omissions and irregularities. Critics allege that agencies hide their regulations from the public strategically, that is, to thwart potential political opposition. Others contend that such behavior is benign, perhaps the inevitable result of changing internal priorities or unforeseen events.
To examine these competing hypotheses, this Article uses a new dataset spanning over thirty years of rulemaking (1983–2014). Uniquely, the dataset is drawn directly from the Federal Register. The resulting findings reveal that agencies substantially underreport their rulemaking activities—about 70 percent of their proposed rules do not appear on the Unified Agenda before publication. Importantly, agencies also appear to disclose strategically with respect to Congress, though not with respect to the president. The Unified Agenda is thus not a successful tool for Congress to monitor and influence regulatory development. The results suggest that legislative, not executive, innovations may help to augment public participation and democratic oversight, though the net effects of more transparency remain uncertain. The findings also raise further inquiries, such as why Congress does not render disclosure requirements judicially enforceable.
How should the executive branch respond to globalization? The president’s executive order on international regulatory cooperation provides a blueprint. The branch will turn to regulatory cooperation to make progress in freeing trade and will encourage a particular approach to that cooperation—harmonization—that was eschewed during the successful European integrative project. The executive order, which is assessed in this Article, represents a welcome political endorsement of a phenomenon that was previously pursued by agencies acting largely on their own remit. It is also an attempt to galvanize the use of regulatory cooperation by other agencies disinclined to pursue it in the past. In addition to analyzing how the executive order is meant to work, this Article argues that while the executive’s approach is promising, it must be paired with a commitment to political oversight to ensure that regulatory globalization remains legitimate. There are signs that the president is beginning to provide this commitment through the executive order; the Article identifies a roadmap for its continuation and a role for Congress as well.
People do not like billboards. These off-site signs, or signs advertising goods and services not available in the near vicinity, allegedly create visual blight, cheapening communities and cluttering the landscape. In addition, they have proven to be hard to control. Local government ordinances aimed at limiting the spread of outdoor advertising and controlling its visual impacts are continually challenged by the well-funded billboard industry. While courts have developed criteria, which often incorporate guidance from the Supreme Court, for determining whether billboard-control ordinances are legal,5 new technologies in the outdoor advertising industry require local governments to update their regulations and include new definitions to maintain visual protections. Specifically, supergraphics, or oversized signs painted on or attached to building façades, are becoming popular in many areas. This new type of sign results in the same negative visual impact as traditional billboards and is often significantly larger in size. In addition, because supergraphics are often vinyl or mesh affixed to a building façade, they can be erected without the investment in infrastructure required to create a traditional, pole-standing billboard. This means that supergraphics are easier and cheaper to erect, while often creating much more visual disruption.
Mandatory predispute arbitration clauses requiring individual, final, and binding arbitration and excluding all class or representative actions, whether in court or arbitration, are often embedded in employment contracts and nearly all aspects of commercial and consumer transactions. The Federal Arbitration Act (“FAA”) requires courts to enforce agreements to arbitrate. However, both state and federal administrative agencies regulate the sectors in which arbitration contracts are used. Likewise, state and federal legislation may authorize or “deputize” private individuals to assert representative private attorney general or qui tam actions to enforce legislation on behalf of the state or agency. Strict enforcement of these arbitration clauses can thus impair an individual’s access to legislative and administrative schemes otherwise established to address specific areas of public policy.
This Article examines the impact of private arbitration on individuals’ rights to access agency regulatory procedures and to assert representative claims under state laws authorizing private attorney general or federal quitam enforcement. Although the scope of FAA preemption is established doctrine, state and federal courts continue to variously analyze the FAA’s preemptive impact on administrative and regulatory schemes. For instance, courts differ on how to square FAA preemption against regulatory administrative procedures providing substantive protections, laws that “deputize” aggrieved individuals to assert representative claims on behalf of the government, and situations in which a federal agency has declared its statutory scheme exempt from FAA preemption.
This Article argues that the FAA, where applied to preempt and thus deny access to simplified and protective state and federal agency procedures, violates not only constitutional guarantees of federalism, with regard to the states’ sovereign right to regulate traditional matters of public concern, but also separation of powers. Established doctrine, requiring exhaustion of administrative remedies, deference to agency rulings and expertise, as well as respect for state authority under the FAA’s “savings clause,” also supports maintaining such access. This Article proposes alternative reforms to retain the benefits of agency regulation and expertise while respecting contractual obligations and promoting informed decision-making.
A new breed of “app-based” ride-for-hire providers has caused a stir in California, helped rewrite the state’s rules governing ridesharing, and stoked tensions among taxicab drivers, state and local regulators, and the technology companies behind the new apps. UberX, Lyft, and Sidecar are among the most well-known of the new app-based rideshare services, which allow customers to hail a ride using smartphone applications by connecting them with drivers who also use the apps. Critically, the drivers need not be professionals; rather, they merely need to have downloaded a ridesharing app and been cleared by the app provider to drive. For a time, the app-based rideshare companies pointed to these novel aspects of their services to flout regulation entirely. New laws and rules in California, however, provide for the regulation of the nascent industry under a statewide scheme mandating insurance coverage, driver background checks, and other safety-based requirements. In substance, the new rules signal the state’s tacit approval of the development of app-based ridesharing services. Users of these app-based services, which are currently available only in major metropolitan areas like Los Angeles, have been impressed by the apps’ lower prices and perceived higher quality of service.
In Ring-Fencing, Professor Steven Schwarcz provides an insightful overview of the concept of “ring-fencing” as a “potential regulatory solution to problems in banking, finance, public utilities, and insurance.” As Professor Schwarcz explains, “ring-fencing can best be understood as legally deconstructing a firm in order to more optimally reallocate and reduce risk.” Ring-fencing has gained particular prominence in recent years as a strategy for limiting the systemic risk of large financial conglomerates (also referred to herein as “universal banks”). Professor Schwarcz describes several ring-fencing plans that have been adopted or proposed in the United States, United Kingdom, and European Union.
This Comment argues that “narrow banking” is a highly promising ring-fencing remedy for the problems created by universal banks. Narrow banking would strictly separate the deposit-taking function of universal banks from their capital markets activities. If properly implemented, narrow banking could significantly reduce the safety net subsidies currently exploited by large financial conglomerates and thereby diminish their incentives for excessive risk-taking.
Steven Schwarcz’s “Ring-Fencing” gets much of its impact from its broad definition of the term, which is usually heard these days when thinking about whether a multinational bank ought to be forbidden from removing the assets of its branches in one country to support its activities in another.
One of the singular contributions of the article lies in its willingness to look beyond that use of the term to think about what ring-fencing means more broadly and conceptually. As Schwarcz observes, ring-fencing is nothing less than a way to allocate resources, regulate firms, and reassure stakeholders that could be applied any enterprise. The ring-fencing metaphor posits the separation of assets within a firm—some are inside the ring fence, and others are not. To Schwarcz this amounts to “legally deconstructing a firm in order to more optimally reallocate and reduce risk,” which could include any restructuring involving holding companies, off-balance sheet entities, and even the creation of corporate subsidiaries.
Throughout its history, the sport of boxing has been known as much for its corruption and scandals as its courageous fighters and memorable bouts. Indeed, it has been referred to by some as the “red light district of sport[s].” Even today, boxing is plagued by fixed fights, exploitative promoters, greedy sanctioning organizations, unnecessary health risks to boxers, incompetent state athletic commissions, and a confusing array of weight divisions with a multitude of world champions. In fact, some of these issues were so rampant that Congress, in 1996 and 2000, passed federal legislation attempting to address them.