We dive into the legal nature of the regulatory state with Ethan Leib of Fordham Law School. In what sense is the making of regulatory policy, whether on the environment or on net neutrality, a legal process? Should regulatory agencies adhere to precedent or otherwise be bound by law-like doctrines? We learn about the White House’s influence over rulemaking through OIRA and question how OIRA should function and what legal principles should govern it.

This show’s links:

• Ethan Leib’s faculty profile and articles
• This Week in Law 263: More Bodies on Blackacre, on which Joe and Christian were guests
• Nestor Davidson and Ethan Leib, Regleprudence - at OIRA and Beyond
• Mark Tushnet, Legislative and Executive Stare Decisis
• The nuclear option
• About OIRA, the Office of Information and Regulatory Affairs, and its resource page
• The major executive orders concerning federal regulation and the role of OIRA
• The repository of OIRA return letters
• Cass Sunstein, The Office of Information and Regulatory Affairs: Myths and Realities
• Catherine Sharkey, State Farm 'with Teeth': Heightened Judicial Review in the Absence of Executive Oversight
• Julius Cohen, Towards Realism in Legisprudence and Legisprudence: Problems and Agenda
• Lon Fuller, The Morality of Law
• Carol Rose, New Models for Local Land Use Decisions
• Cass Sunstein’s memorandum for agency heads, Disclosure and Simplification as Regulatory Tools
• Office of Management and Budget, Circular A-4
• Public comments on the Obama administration’s proposal to revise the basic regulatory executive order (including comments from Martha Nussbaum, Eric Posner, Gillian Metzler, Richard Revesz, Michael Livermore, and Peter Strauss)
• Ethan Leib and David Ponet, Fiduciary Representation and Deliberative Engagement with Children
• Evan Criddle, Fiduciary Administration: Rethinking Popular Representation in Agency Rulemaking