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INTRODUCTION I. THE DODD-FRANK ACT, RULE 13Q-1, AND THE CRA CONUNDRUM A. The SEC's Implementation of the Dodd-Frank Act's Rulemaking Mandate B. Congressional Oversight and the Creation of the CRA [...], Congress routinely enacts substantive statutes that require federal agencies to adopt regulations. When agencies issue regulations under' these statutes, their rules are then subject to potential disapproval by Congress under a process outlined in a separate procedural statute known as the Congressional Review Act (CRA). If Congress passes a CRA disapproval resolution, this voids the disapproved regulation and triggers a provision in the CRA that prohibits the agency from adopting any subsequent regulation that is "substantially the same" as the disapproved one. But a CRA disapproval resolution does nothing to eliminate the agency's obligation under' the substantive statute to put a regulation in place. And many times, the substantive statute does more than merely require that an agency adopt a regulation; it also provides considerable detail instructing the agency as to what the mandated regulation should require. What emerges in these cases is a conundrum--the CRA conundrum--created by a tension between the CRA and the detailed provisions of the substantive statute requiring adoption of a regulation. If an agency is obligated under' the substantive statute to adopt a regulation meeting that statute's detailed strictures, how can it respond to a disapproval resolution without offending the CRA's ban on issuing a rule that is substantially the same as the disapproved one? This Article identifies the CRA conundrum and then shows how agencies can tackle it, using, as an example, the predicament that the Securities and Exchange Commission faced over' an energy extraction disclosure regulation that was called for under the Dodd-Frank Act but was subsequently disapproved by a later' Congress. The key to resolving the conundrum is to recognize that Congress's choice of imprecision in the CRA--that is, its choice to use the word "substantially"--allows agencies to follow the more specific language contained in a substantive statute. The test for substantial similarity must be measured against the discretion the substantive statute affords the agency. As a general procedural statute, the CRA can only impose obligations on an agency with respect to matters over' which the agency retains discretion. An agency that finds itself facing the CRA conundrum simply needs to make sure that any reissued rule is no tonga substantially the same with respect to those portions of the regulation over which the substantive statute allows the agency room to maneuver'. Even with highly detailed statutory provisions, an agency will almost always still have some discretion ova some of the regulation's terms. That discretion must then be exercised in a substantially diffaent way, even if by only making available opportunities for waivers or by extending deadlines for compliance. In the end, by viewing "substantial" from thepropa paspective, the CRA conundrum can be readily solved.

The quality of human life depends on maintaining the quality of the natural environment. As a result, governmental institutions in the United States--as in other developed countries--have responded to the [...], Soft law governance relies on nongovernmental institutions that establish and implement voluntary standards. Compared with traditional hard law solutions to societal and economic problems, soft law alternatives promise to be more politically feasible to establish and then easier to adapt in the face of changing circumstances. They may also seem more likely to be flexible in what they demand of targeted businesses and other entities. But can soft law actually work to solve major problems? This Article considers the value of soft law governance through the lens of three major voluntary, nongovernmental initiatives that address environmental concerns: (1) ISO 14001 environmental management systems; (2) sustainable forest certification systems; and (3) LEED standards for energy efficient buildings. Taken together, these case studies indicate that, even though soft law governance may hold considerable theoretical appeal, it can also be quite limited in what it actually achieves. Decision-makers should rely on soft law governance only with full recognition of its limitations as well as its alluring characteristics. CITATION: Cary Coglianese, Environmental Soft Law as a Governance Strategy, 61 JURIMETRICS J. 19-51 (2020).

Introduction I. COVID-19 and Comparative Administrative Law II. Lessons Learned from Pandemic Responses A. Global Pandemics Call for Effective National and Local Governance B. Regulatory Law Must Adapt Quickly C. [...]

Introduction I. Learning Objectives II. Materials in Course Module III. Background for Instructors A. The Benzene Case B. Standards Organizations Involved in the Benzene Case C. The Standards Development Process [...], Private standards play a central role in the governance of economic activity. They also figure significantly in many public regulations, with more than 17,000 references to private standards contained in the federal regulatory code. Nevertheless, private standards remain largely overlooked in law school curricula. One clear example is Industrial Union Department, AFL-CIO v. American Petroleum Institute (often referred to as the "Benzene Case"), a 1980 Supreme Court decision that is widely excerpted and discussed in major casebooks on administrative law, regulation, environmental law, and statutory interpretation. The Benzene Case raises several important legal issues, including the non-delegation doctrine, the use of benefit-cost analysis in rulemaking, and the proper standard for judicial review in the face of scientific uncertainty. These traditional issues have been explored thoroughly in both legal scholarship and teaching materials, but the Benzene Case also raises previously unacknowledged questions about the role of nongovernmental actors in the development of private standards which are then incorporated into federal law. In particular, scholars have overlooked the important role that private standards played in the early development of the Occupational Safety and Health Administration's regulatory limits on benzene. Addressing this oversight, we explain in this detailed Teaching Guide how the Benzene Case provides an excellent opportunity for lawfaculty to introduce students to what private standards are, how they are developed, and the extent to which the government should rely on these standards. Given the ubiquity of private standards today and the extent to which they are woven into the fabric of regulation across a range of substantive domains, it is vital that law students begin to grapple with questions about their proper role in public law.

Lawyers work with law. That simple truism explains why law professors assign their law students thousands of pages of court decisions and statutory and regulatory materials each semester. By studying [...]

Introduction I. Toward a Black-Box Government? A. Methods of Algorithmic Governance B. What Makes Machine Learning Distinctive? II. Legal Principles of Open Government A. Types of Transparency B. Legal Demands [...], Machine-learning algorithms are improving and automating important functions in medicine, transportation, and business. Government officials have also started to take notice of the accuracy and speed that such algorithms provide, increasingly relying on them to aid with consequential public-sector functions, including tax administration, regulatory oversight, and benefits administration. Despite machine-learning algorithms' superior predictive power over conventional analytic tools, algorithmic forecasts are difficult to understand and explain. Machine learning's "black box" nature has thus raised concern: Can algorithmic governance be squared with legal principles of governmental transparency? We analyze this question and conclude that machine-learning algorithms' relative inscrutability does not pose a legal barrier to their responsible use by governmental authorities. We distinguish between principles of "fishbowl transparency" and "reasoned transparency," explaining how both are implicated by algorithmic governance but also showing that neither conception compels anything close to total transparency. Although machine learning's black-box features distinctively implicate notions of reasoned transparency, legal demands for reason-giving can be satisfied by explaining an algorithm's purpose, design, and basic functioning. Furthermore, new technical advances will only make machine-learning algorithms increasingly more explainable. Algorithmic governance can meet both legal and public demands for transparency while still enhancing accuracy, efficiency, and even potentially legitimacy in government.

The article discusses the regulation of artificial intelligence (AI) in the United States and Europe. While Europe is seen as being ahead in terms of AI regulation, the United States has recently taken significant steps with the signing of Executive Order 14,110 by President Biden. The order addresses concerns such as safety, transparency, accountability, bias, privacy, and worker displacement. It requires federal agencies to produce reports and guidance documents and consider adopting new regulations. The order emphasizes the importance of people and processes in AI governance and calls for the development of a well-trained and digitally savvy workforce. The article highlights the need for a management-based approach to AI governance and the importance of impact assessments and auditing to ensure responsible use of AI tools. [Extracted from the article]

TABLE OF CONTENTS Introduction I. What Does a Decisional Limit Mean? II. Decisional Limits in Practice III. Easy Legal Escapes A. We Speak B. The President Requests C. The President [...], The heads of administrative agencies exercise authority delegated directly to them through legislation. To what extent, then, may presidents lawfully direct these agency heads to carry out presidential priorities? A prevailing view in administrative law holds that, although presidents may seek to shape and oversee the work of agency officials, they cannot make decisions for those officials. Yet this approach of imposing a decisional limit on presidential control of the administrative state in reality fails to provide any meaningful constraint on presidential power and actually risks exacerbating the politicization of constitutional law. A decisional limit presents these problems because the concept of a decision in the governmental setting lacks precision, failing to provide a coherent line between permissible oversight and impermissible decisionmaking. A decisional limit also cannot in practice be enforced against either presidents or agencies. Presidents have available to them four easy strategies, each documented in this Article, that allow them ready escape from legal criticism that they have overridden agencies' autonomy in violation of any purported decisional limit. Instead of continuing to invoke an unworkable standard that only invites unhelpful politicization of constitutional law, legal scholars would do well to invoke the virtues of a bright-line rule in this particular setting and favor a rule that requires agency officials to sign off, literally, on agency actions before they can take effect. Such a formal "signature limit" will serve to constrain presidential power but will do so by avoiding the unnecessary risks that a decisional limit poses to law's legitimacy.

INTRODUCTION As the forty-fifth American President, you will face a pressing need to improve the process by which federal agencies make law and affect the lives of millions of Americans. [...]

During the Obama Administration, the U.S. Environmental Protection Agency (EPA) took notable steps to address climate change by issuing a variety of significant new rules under the Clean Air Act. [...]

Across all three sources, then, there exists one obligation-alleviating word for approximately every five to six obligation-imposing words. In 2017, the ratio of obligation-alleviating words to obligation-imposing words in the CFR was 1.0 for every 5.9. Right now, agencies focus more on the obligations that new regulations will impose than on the roads that agencies have not traveled: that is, the carveouts contained within those regulations or the options they provide for dispensations. The prevailing understanding of regulation in the United States is myopic. [Extracted from the article]

The article highlights the opportunities provided by machine learning to U.S. government agencies. Topics covered include the reasons that standard doctrines should not form insuperable barriers to the use of machine-learning algorithms in government, a variety of forms of robotic rulemaking that agencies might also engage in, and four major legal principles that must be considered when using algorithms to make rules or resolve adjudications.

The article discusses the importance for governments to ensure the safety of consumers from imported food, drug and consumer products and to address the legal, cultural and practical challenges brought about by their importation. It offers information on the state of importation in the U.S. and the problems of tampering, defects and contamination brought about by the causal chain. Solutions are offered to policy makers to improve the country's enforcement programs for import safety.