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2 Regul. Rev. Depth 1 (2013)

handle is hein.journals/rgyrvidh2 and id is 1 raw text is: WHITE HOUSE REVIEW OF REGULATION: MYTHS AND REALITIES Cass R. Sunsteint I am going to tell you a bit about the real world of the Office of Information and Regulatory Affairs (OIRA). And I am just going to tell you facts. But it occurred to me as I looked over the remarks I had prepared that they have no ideas in them, so here are some things that are, if not ideas, at least quasi-ideas. The first idea has to do with an oft-quoted statement by Felix Frankfurter about how the history of Anglo-American liberty is in large part a history of procedural safeguards. I remember when I read that statement in law school, I wondered: How can the history of liberty be a history of procedural safeguards? They are good, but they are kind of boring. The role of OIRA is emphatically one of procedural safeguards. That is a first quasi-idea: OIRA sees itself as a guardian of what we might call regulatory due process. This little concept of regulatory due process means some kind of hearing for everybody: inside government and outside government, an opportunity to be heard. That is the Frankfurtarian idea. The second idea is from John Stuart Mill, and here I am thinking both of Mill, the dedicated utilitarian, and of Mill, the sharp critic of Jeremy Bentham, the founder of utilitarianism. Mill believed in consequences, and specifically in making sure the consequences are as good as possible. But Mill said that his kind of intellectual father, Bentham, was like a person who was blind in one eye and could see further than anybody else but could not see all the dimensions. In his great paper on Bentham, Mill said that there were qualitative differences among human goods. Bentham was not alert to the love of beauty, the love of mystery, the love of nature, but Mill saw that these were qualitatively different from other kinds of loves. The utilitarian framework, understood in a certain way, would run over them and call these t Robert Walmsley University Professor at Harvard Law School. Previously the Administrator of the White House Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB). This essay is an edited version of the author's 2013 Distinguished Lecture on Regulation at the University of Pennsylvania Law School. The lecture drew on a larger article that the author subsequently published as The Office ofInformation and Regulatory Affairs: Myths and Realities, 126 HARV. L. REV. 1838 (2013).

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