101 Geo. L.J. 1337 (2012-2013)
Regulatory Review, Capture, and Agency Inaction

handle is hein.journals/glj101 and id is 1385 raw text is: Regulatory Review, Capture, and Agency Inaction
This Article highlights the role of capture in providing a normative founda-
tion for regulatory review of administrative action, which, at the federal level, is
conducted by the Office of Information and Regulatory Affairs (OIRA) within
the White House Office of Management and Budget (OMB). It also establishes a
reform agenda to help bring the practice of review in line with its anticapture
justification. There are two traditional justifications for OIRA review: that
centralized review facilitates the exercise of presidential authority over agen-
cies, and that bureaucratic tendencies toward overzealousness require a central-
ized checking response. Both of these justifications are problematic, however
The normative desirability of maximizing presidential power is subject to
debate, and OIRA's contribution to increasing presidential control is controver-
sial. Bureaucratic incentives can lead to both overregulation and underregula-
tion, raising doubts about the need for a systematic check focused solely on the
former An anticapture function for OIRA provides a more promising ground for
regulatory review. OIRA has four important features that, in principle, can
facilitate an anticapture role: its generalist nature; its coordination function; its
use of cost-benefit analysis; and its tradition of independent leadership. There
are, however, elements of OIRA review that undermine its anticapture potential,
most importantly the near-exclusive focus on the review of agency action. The
failure of an agency to act can be just as detrimental to social well-being as
overzealousness, and special interests may seek deregulation, delay, and weak
regulation as often as overregulation. This Article proposes a specific mecha-
nism for OIRA to engage in review of agency inaction by examining petitions
for rulemakings filed with agencies. This procedure cabins OIRA's inaction
review powers within a fairly limited field, making the task workable, and takes
advantage of information held by parties outside the government.
* Executive Director, Institute for Policy Integrity and Adjunct Professor, New York University
School of Law, and Dean and Lawrence King Professor of Law, New York University School of Law,
respectively. 0 2013, Michael A. Livermore and Richard L. Revesz. This Article benefited from helpful
comments from participants at the 2012 Annual Meeting of the American Law and Economics
Association (as well as an anonymous reviewer for that meeting) and the 2012 Annual Meeting of the
Association of American Law Schools. Participants at two Tobin Project workshops on preventing
How ro Lturr IT (Daniel Carpenter & David Moss eds., forthcoming 2013), available at http://
www.tobinproject.org/books-papers/preventing-capture, also provided valuable feedback. Rachel Barkow,
Michael E. Levine, Mark B. Seidenfeld, and Cass R. Sunstein also provided helpful insights. We would
like to thank Akari Atoyama, Scott Blair, and Shaun Werbelow for excellent research assistance and the
Filomen D'Agostino and Max Greenberg Research Fund at New York University School of Law for
generous financial support.


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