The Regulatory Review highlights the top regulatory stories written by our staff in 2017.
The Regulatory Review is pleased to highlight the top fifty pieces of 2017 authored by The Regulatory Review staff contributors. These articles, which qualify for this list based on the number of page views, are arranged below in alphabetical order by last name of author.
May 24, 2017 | Alina Artunian
Twenty years after the debut of the award-winning musical Rent, New Yorkers are still struggling with rising rent costs and finding “a way to pay.” It is no surprise that New Yorkers and tourists alike have turned to Airbnb, the popular online community that helps connect hosts and travelers around the world, to find affordable housing in the city. However, in October 2016, the New York legislature signed into law a bill that prohibits apartment advertisements for purposes other than permanent residence.
October 25, 2017 | Benjamin Barsky
A new war on drugs is taking place—and this time, it is being waged against prescription opioid abuse. Medical professionals prescribe opioids to treat pain from injuries, surgeries, and chronic diseases. Insurers play a key role in such treatment because they allow insureds—that is, people covered by health insurance—to get prescription opioids without incurring overwhelming costs. But in a recent article, one legal scholar argues that regulators have “widely ignored” the role insurers should play in addressing the epidemic, despite being central to the problem.
January 2, 2017 | Thomas D. Campbell
When making health care decisions, few patients with health insurance have to consider the overall costs of their treatment. Instead, they are able to focus on their recovery. What most patients don’t realize, however, is that they benefit from a system of negotiated prices and under-paid procedures, which often leaves uninsured patients to shoulder the costs. Vermont is now taking steps to address problems that can arise from this opaque system, including rising health care costs.
June 14, 2017 | Thomas D. Campbell
Every year, the United States receives 35,000 new requests for kidney transplants. Kidney reserves, however, can supply only 17,000 procedures per year. Over time, this difference between need and supply has produced a wait list including roughly 100,000 patients hoping to receive kidneys. What would it take for you to agree to donate a kidney? Nicola Lacetera, a professor at the University of Toronto’s Institute for Management and Innovation, has found that U.S. residents are likely to support the provision of governmental incentives directed toward living donors.
August 31, 2017 | Katie Cramer
Average home prices in Seattle, Washington have jumped more than 12 percent in the past year. Hiring frenzies at technology giants including Amazon and Facebook have helped fuel the Seattle area’s housing demand and increase living expenses as the city grows. A recently revised proposal to regulate short-term rental properties—like those listed on Airbnb and VRBO—aims to protect housing stock in the Pacific Northwest city without disturbing the supplemental income individual homeowners can earn through the sharing platforms.
October 10, 2017 | Katie Cramer
Many of us may take for granted that we can create social media profiles using our own names. But two years ago Facebook made headlines when a number of Native American users, including Dana Lone Hill and Lance Browneyes, reportedly were forced to edit their names to gain access. During a recent workshop at the University of Pennsylvania Law School, computer scientist Sorelle Friedler highlighted the Facebook controversy as an example of how bias can creep into computer codes in ways that designers do not foresee when writing them.
October 11, 2017 | Katie Cramer
Pittsburgh has an innovation to trumpet: its surrounding county government has digitized its records and is now using big data analysis to improve health and human services. At a workshop held earlier this year at the University of Pennsylvania Law School, a trio of policy experts discussed the big data developments in Allegheny County as well as other efforts to build algorithmic decision-making into government services more broadly.
September 5, 2017 | Kim Cullen
The Philadelphia City Council unanimously passed a new “anti-pet mill” ordinance last year. The ordinance prohibits pet shops from selling puppies and kittens that come from large-scale, commercial breeding facilities with poor living conditions. Although Philadelphia has joined other cities and states in increasing protections for dogs and cats, some scholars note that other types of animals—particularly agricultural animals such as cows, chickens, and pigs—are not receiving the same sort of attention from regulators.
January 26, 2017 | Justin S. Daniel
In a recent video message, President-elect Trump promised to develop a plan to eliminate two old regulations for each new one. However, it was reportedly Canada that first developed such a rule when it implemented its “One-for-One” law in April 2015 as part of a regulatory reform agenda. A recently published paper by Sean Speer, a senior fellow at the Washington, D.C.-based think tank R Street Institute, considers how Canada’s track record with so-called “regulatory budgeting” can provide useful lessons to U.S. policymakers considering similar options for reform.
August 2, 2017 | Justin S. Daniel
When thieves are required to repay the money they stole, are they being punished? Or is the repayment just compensation to those from whom they stole? These questions recently presented themselves to the U.S. Supreme Court in Kokesh v. SEC, a case in which the Supreme Court considered whether the U.S. Securities and Exchange Commission’s pursuit of “disgorgement”—a type of repayment—is properly understood as a “penalty” within the meaning of a statute imposing a five-year limitation on the imposition of penalties by the SEC.
September 4, 2017 | Justin S. Daniel
When you need help during an emergency, you call 9-1-1—and each of your first responders has a clear role to play and works together to achieve a common goal: ensuring your well-being. According to former U.S. Secretary of Commerce Penny Pritzker, that same type of coordinated response across the public and private sectors is exactly what “we need to defend our country against major cyber-attacks.” But former Secretary Pritzker also recognized that achieving this unified partnership may require “fundamentally changing” the way businesses work with federal agencies to counter cyber threats.
October 12, 2017 | Justin S. Daniel
Is climate change a “reasonably foreseeable” consequence from a government agency’s approval of a natural gas pipeline? What if an entirely separate agency regulates the facilities that will actually burn the transported gas? A three-judge panel of a federal court of appeals recently grappled with these questions and determined that the Federal Energy Regulatory Commission—in considering and approving the construction of a natural gas pipeline project—should have considered the eventual burning of natural gas when weighing environmental concerns.
November 27, 2017 | Justin S. Daniel
Justice Neil Gorsuch’s criticism of courts’ practice of giving special weight to agency interpretations of law was front and center during his confirmation hearings earlier this year. But with Justice Gorsuch now on the U.S. Supreme Court, and congressional Republicans considering ways to constrain the administrative state, what are the best legal options for reforming Chevron? A forthcoming article surveys recent arguments in favor of scaling back or eliminating judicial doctrines under which federal courts defer to agency interpretations.
January 25, 2017 | Taylor Daily
Travel to Cuba is booming, with 140,000 Americans thought to have visited the Caribbean nation in 2016. Yet, most types of travel to Cuba are still prohibited by statute; the increase in tourism has occurred because the Obama Administration decided to reduce enforcement of a travel ban. Without further legislative action, the Trump Administration could reverse this policy and once again limit visits to the island.
August 15, 2017 | Taylor Daily
In a recent article, Professor Brian D. Galle of the Georgetown University Law Center argues that “ex post regulation”—which imposes liability only after a harm occurs—has even more significant disadvantages than previously thought. Since managers at regulated firms have a tendency to discount long-term regulatory consequences, Galle favors “ex ante regulation”—or imposing costs before an actor harms another—as the more efficient way of regulating.
January 20, 2017 | Griffin Davis
President-elect Donald Trump’s regulatory agenda is no secret, but precisely how he can go about enacting it is less obvious. According to his campaign website, President-elect Trump’s regulatory goals include eliminating the country’s “most intrusive regulations.” So, how do President-elect Trump and the new Congress go about eliminating regulations? The answer to that question may depend upon the precise form of each targeted regulation.
May 29, 2017 | Griffin Davis
In a recent paper, two scholars consider the ways in which robo-advisors differ from human advisors and discuss the obstacles these differences present to regulators as they design regulatory schemes for robo-advisors. Tom Baker of the University of Pennsylvania Law School and Benedict G. C. Dellaert of Erasmus University Rotterdam argue that the public should not assume robo-advisors would not be subject to the same misalignment of incentives, particularly when the robo-advisors are designed or purchased by financial intermediaries with the same incentives as human advisors.
June 29, 2017 | Griffin Davis
Countercyclical regulation is a method to cut back regulation during times of economic downturn and high unemployment. The countercyclical approach is primarily in response to the argument that regulation has a negative impact on employment. In a recent paper, Professors Jonathan Masur and Eric Posner of the University of Chicago Law School examine the arguments behind countercyclical regulation, the conditions under which it makes practical sense, and its viability as a regulatory framework.
August 9, 2017 | Griffin Davis
Until recently, the ability to invest in exciting new companies had largely been limited to those with access to startup hubs like Silicon Valley and with the means to make significant contributions. Today, equity crowdfunding—a tool that allows large numbers of investors to fund startups in exchange for equity—aims to expand this market. Still, such crowdfunding may not realize its full potential without careful regulation. Perhaps no country faces more consequential choices about how to regulate crowdfunding than China.
April 27, 2017 | Price Felker
The Green Party has nominated a candidate in every presidential election since 2000. The Libertarian Party has nominated a candidate in every presidential election dating back to 1972. Yet none of these candidates has ever made it onto a presidential debate stage. A recent decision by a federal court may change that. The U.S. District Court for the District of Columbia ruled in February that the Federal Election Commission improperly dismissed complaints about how the Commission on Presidential Debates determines who makes it onto the debate stage.
January 13, 2017 | Alex Kang
Daniel Abebe, Professor of Law at the University of Chicago Law School explores how state-to-state exchanges could be regulated—how the United States government might choose to curtail, or expand, the President’s authority to engage in cyberwarfare—in light of cyberwarfare’s nascent, but increasingly important status within the international community. Abebe argues that in determining the appropriate level of control for cyberwarfare policymakers must consider not only internal institutional constraints but also the direct relationship these internal constraints have with external constraints created by the competing interests and other countries.
July 17, 2017 | Alex Kang
The year is 2086. An artificial intelligence program monitors the feeds from security cameras placed around the city. Swarms of police drones fly through the air conducting surveillance on suspicious individuals. This scene may seem like a page taken straight from the screenplay of a Hollywood blockbuster like RoboCop or Blade Runner. However, Elizabeth Joh, Professor of Law at University of California, Davis, School of Law, argues in a recent paper that a future where the police use artificially intelligent machines capable of using force against humans is not only possible, but also probable.
April 10, 2017 | Kim Kirschenbaum
Although a lawyer-in-training, I have always considered myself to be a storyteller at heart. I love the pursuit of discovering the world’s untold stories, of gathering and putting together the pieces of these stories. Reflecting on this past year, I would like to think that we did not simply keep our heads afloat in these rough-and-tumble waters. More than that, we navigated these waters with the care, skill, and grace that enabled this publication to emerge a stronger-than-ever leader in the regulatory space. Although my own story comes to an end here, this is far from the last chapter for The Regulatory Review.
May 15, 2017 | Jennifer Ko
In light of ongoing public interest in the Dakota Access Pipeline, the Kleinman Center for Energy Policy and the Penn Wharton Public Policy Initiative at the University of Pennsylvania recently hosted a joint workshop reviewing the key legal and policy issues raised by the project. Benjamin Nussdorf, an Adjunct Professor at the Washington College of Law, provided initial remarks, and John Quigley, a Senior Fellow at the Kleinman Center, offered commentary and moderated the event.
June 19, 2017 | Jennifer Ko
Although rent-controlled units remain rare in “hot markets” like New York City, demand for affordable housing in booming markets continues to grow. To tackle the question of how policies can preserve affordable housing in rising real estate markets, Lance Freeman, a professor at Columbia University, and Jenny Schuetz, an economist with the Federal Reserve, recently published a paper evaluating state and municipal programs focused on producing affordable housing.
July 3, 2017 | Jennifer Ko
In a recent working paper, Christopher Walker, Professor of Law at The Ohio State University Moritz College of Law explores the relationship between federal agencies and courts, and argues that agencies operate with minimal judicial oversight in two key ways: through rulemaking, and through agency involvement in legislative drafting. As Walker observes, there are a number of ways that agencies can regulate without judicial review.
April 25, 2017 | Jane Komsky
In response to the stories of many students who have killed themselves after being cyberbullied, states have begun to regulate cyberbullying by allowing schools to intervene when their students are victims of cyberbullying. In a recent paper, Philip Lee, a professor at the University of the District of Columbia David A. Clarke School of Law, offers an approach that he believes will allow schools to intervene when a student causes serious harm to another, more vulnerable student through off-campus cyberbullying without infringing on or limiting students’ rights to free speech.
September 7, 2017 | Jane Komsky
What is the platform economy? Although it is easy to point to companies that are part of this emerging technology-facilitative segment of the economy regulators such as the European Commission, the Federal Trade Commission, and the French Digital Council have had great difficulty agreeing on a precise definition of this growing sector. According to Michèle Finck, a senior research fellow at the Max Planck Institute, regulators’ lack of consensus on the precise definition of the platform economy has made the task of effectively regulating platforms more difficult.
August 23, 2017 | Sarah Kramer
American corporate anti-bribery and anti-corruption laws form the basis for one of the largest and busiest fields of white-collar legal practice in the world. But prior to 2000, enforcement of U.S. anti-corruption laws rarely occurred. What prompted this dramatic and rapid change? According to Duke Law professors Rachel Brewster and Samuel W. Buell, greater international cooperation combined with U.S. legal culture spurred this growth in anti-corruption enforcement.
September 13, 2017 | Sarah Kramer
“We’re going to be cutting regulation massively…we think we can cut regulations by 75 percent, maybe more,” President Donald J. Trump said shortly after his inauguration. But is it possible—or even desirable—to decrease the number of regulations to such an extent? A panel held earlier this year at the University of Pennsylvania Law School examined this question in light of the Trump Administration’s steps to reduce regulations. Penn Law professor Cary Coglianese moderated the discussion and summarized the contours of the Trump Administration’s plans.
October 9, 2017 | Sarah Kramer
A law-making machine that runs the government may seem like an idea straight out of a Star Trek episode, but computers already play key roles in all facets of society—including in governmental decision-making. Does this type of computer technology fit well with democratic principles when used by governments? Is society ready for robots that make law? A recent workshop held at the University of Pennsylvania Law School examined these questions posed by the interaction of democratic governance and technology. Penn Law professor Cary Coglianese moderated the discussion.
September 6, 2017 | Evan Marolf
Local food production and consumption offer a variety of benefits, which two legal scholars, Patricia Salkin and Amy Lavine, discuss in a recent paper. Because of these purported benefits, Salkin and Lavine argue that local and state governments should follow the example of some of their peers and update their zoning and land use regulations to encourage more local food production. Salkin and Lavine tout the advantages of “foodsheds”—geographic areas surrounding urban areas that can provide some of the food that city-dwellers consume.
January 24, 2017 | Adeline Rolnick
Regulatory reform is on the agenda for President Donald Trump’s first 100 days in office. At the forefront is Trump’s recent vow to institute a policy which would require two regulations to be repealed for every new regulation issued—a so-called two-for-one system. Although Canada, the United Kingdom, Australia, and the Netherlands have adopted regulatory offset programs like the kind Trump has proposed, it is unclear how, exactly, a similar system could be implemented in the United States.
May 23, 2017 | Charlie Rosenthal
Early every morning, Tokyo’s Tsukiji Market, the world’s largest fish market, is a hive of activity as fishermen auction off their prized—and, in some cases, pricey—catch to wholesale buyers. In fact, at one such auction in 2013, a 489-pound Pacific bluefin tuna sold for a then-record 155.4 million yen, which is approximately $1.76 million. But, because of the booming market for tuna and concerns about overfishing, the National Marine Fisheries Service recently made a 90-day finding that there was sufficient evidence to conduct a full review to determine whether to list the Pacific bluefin tuna as endangered under the Endangered Species Act.
September 21, 2017 | Eric Schlabs
When people hire a tax return preparer, they have no guarantee that the preparer passed any exam, continues to complete ongoing education, or meets any other minimum standard that qualifies them to prepare taxes. In a recent paper, Rutgers University Professor Jay A. Soled and University of North Carolina School of Law Professor Kathleen DeLaney Thomas argue that the lack of rules preventing unqualified individuals from becoming tax return preparers decreases the quality of tax return filings, widening the $458 billion “tax gap”—the difference between taxes owed and taxes collected—and leaving consumers liable for back taxes and penalties.
October 2, 2017 | Eric Schlabs
During the first of a series of seven Optimizing Government workshops held at the University of Pennsylvania Law School last year, Aaron Roth, Associate Professor of Computer and Information Science at the University of Pennsylvania, demystified machine learning, breaking down its functionality, its possibilities and limitations, and its potential for unfair outcomes.
October 3, 2017 | Eric Schlabs
What should government consider when implementing predictive algorithms? Where should it draw the line between effectiveness and equality? Panelists speaking at the University of Pennsylvania Law School grappled with these questions during the second of four workshops that are part of a larger Optimizing Government Project that seeks to inform the use of machine learning in government. The panel, moderated by Penn Law professor Cary Coglianese, sought to conceptualize fairness and equality and to distill their philosophical and legal implications for machine learning.
October 31, 2017 | Benjamin Somogyi
In a recent paper, several researchers argue that California’s response to the foreclosure crisis during the Great Recession was more effective at reducing foreclosures and stabilizing housing prices than was the federal government’s approach. They also claim that California’s approach yielded a larger positive economic impact than the Obama Administration’s main foreclosure preventing program—known as the Home Affordable Modification Program (HAMP). Moreover, the effects of California’s response appear to have been long lasting, according to the new paper by researchers Stuart Gabriel, Matteo Iacoviello, and Chandler Lutz.
October 5, 2017 | Paul Stephan
Today, newly-developed computer algorithms recommend individualized health care and retirement plans to consumers. In the future, these “robo advisors” will do even more— recommending mortgages, credit cards, and other financial services to more individuals, all with increasing technical sophistication. Professors Tom Baker from the University of Pennsylvania Law School and Benedict Dellaert from Erasmus University Rotterdam have started thinking about how the regulatory world can adapt.
October 18, 2017 | Anna Lee Whisenant
Last year alone, doctors filled out over four billion drug prescriptions in the United States. But according to some estimates, Americans used nearly one-fifth of these prescriptions for uses unauthorized by the U.S. Food and Drug Administration (FDA). Federal law does not explicitly permit FDA to regulate manufacturers’ promotion of off-label uses of drugs. In a recent paper, however, Nathan Cortez, a professor at Southern Methodist University’s Dedman School of Law, argues that federal law does in fact give FDA authority to implement a “functional” ban on the promotion of off-label uses of their drugs.
June 13, 2017 | Jayme Wiebold
In a recent paper, Georgetown University Law Center Professor John R. Brooks argues that all discharges of federal student loans should be excluded from being deemed income for tax purposes. Currently, when the government forgives certain types of federal student loans, the amount forgiven is taxed as income, creating what Brooks calls a “tax bomb.” For example, if a student borrower had $50,000 of loans discharged, it would be taxed as if she were handed $50,000 in cash.
March 28, 2017 | Bryan C. Williamson
With the U.S. Environmental Protection Agency’s (EPA) Clean Power Plan blocked in court and facing an uncertain future under the Trump Administration, does the agency have any other tools at its disposal to achieve the U.S. climate change goals made in the Paris Climate Agreement? In a recent paper, six legal scholars focus on a section of the Clean Air Act that authorizes EPA to require states to address emissions that contribute to air pollution that endangers public health or welfare in other countries if those countries provide the United States with reciprocal environmental protections.
May 25, 2017 | Bryan C. Williamson
The drinking water crisis in Flint, Michigan captured the attention of much of the nation and spurred responses from both state and federal regulators. Several months after the crisis, the U.S. Environmental Protection Agency decided to consider making significant long-term revisions to its Lead and Copper Rule, which regulates—among other things—lead in drinking water. During a time of increased public scrutiny, these revisions raise the question of how regulators can improve regulations to prevent another drinking water crisis.
July 6, 2017 | Bryan C. Williamson
One of the primary objectives of the U.S. Environmental Protection Agency (EPA) is to safeguard human health. But when it comes to chemicals and pesticides, do federal environmental laws—and the regulations designed to implement them—adequately protect against repeated exposure to toxins over long periods of time? At least one scholar believes that they do not. In a recent paper, Sanne Knudsen, an associate professor at the University of Washington School of Law, argues that the government’s approach to protecting human health largely ignores a significant issue: the cumulative risk posed by chemicals and pesticides.
August 29, 2017 | Bryan C. Williamson
What do Apple, Snapchat, and the U.S. Environmental Protection Agency (EPA) have in common? According to one legal scholar, they have all found success employing entrepreneurial strategies to achieve their goals. In a recent paper, Professor Philip Weiser of the University of Colorado Law School points to recent examples of so-called “entrepreneurial administration” as he argues that administrative agencies can improve regulation by operating more like businesses in key respects.
November 14, 2017 | Brandon Wong
The vast majority of American children attend public elementary and secondary schools. Millions more Americans are pursuing a college degree. These students, young and old, find themselves in educational institutions that fall under the umbrella of federal policies adopted by the Obama Administration. Some of these Obama-era policies—specifically ones related to transgender students, school discipline, and college sexual assault investigations—need reform, according to a paper recently authored by members of The Federalist Society, a conservative legal advocacy organization. The paper’s authors argue that these Obama Administration policies violate the law.
May 31, 2017 | Leah Wong
Since President Donald Trump took office, many headlines covering U.S.-China relations have emphasized rising tensions between the two nations—from trade issues to territorial disputes in the South China Sea. But in a recent paper, Jamie P. Horsley, a visiting fellow at the Brookings Institution’s John L. Thornton China Center, highlights how the United States’ engagement with China has promoted good governance and regulatory reform there.
August 10, 2017 | Leah Wong
In a recent report, Emily Fetsch, a research assistant at the Ewing Marion Kauffman Foundation, explores how occupational licensing requirements diminish the economic potential of the formerly incarcerated. Removing barriers in licensing would reduce unemployment by former inmates, curb recidivism, and boost the economy, Fetsch argues. After summarizing research on the correlation between employment and recidivism, she recommends policy reforms for state regulators to improve the disproportionate effects of occupational licensing on the formerly incarcerated.
October 4, 2017 | Leah Wong
Artificial intelligence plays an increasingly important role in informing public policy—for everything from the likelihood of an individual becoming homeless or dropping out of school can be predicted through algorithms today. But how do these algorithms generate their predictions? Are the results fair? How do we define “fair” when we balance technology and government decisions? Top researchers recently explored these questions at a workshop hosted the University of Pennsylvania Law School, “Fairness and Performance Trade-Offs in Machine Learning.”
January 3, 2017 | Sophia Yan
Investments in financial technology companies like Prosper, SoFi, Lending Club, and Kabbage have reached record levels in recent years. These companies upend the traditional banking model through peer-to-peer lending, non-bank marketplace lending, app-based loans, and other innovations. A new announcement by the Office of the Comptroller of the Currency (OCC), a national banking regulator, indicates that the OCC will seek to regulate financial technology (FinTech) companies under a single national standard that provides a different set of rules than those that currently govern the growing industry.
These essays are part of a three-part series, entitled The 2017 Regulatory Year in Review.