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REGULATION BY LITIGATION
Leave a Comment The era of big government may be over, but the era of regulation through litigation has just begun.
--Robert B. Reich
USA Today, February 11, 1999


WHAT IS REGULATION BY LITIGATION?

A Poster Child for Regulation by Litigation Run Amok: The BLM Oil Shale Program

LAW SUITS EXEMPLIFYING REGULATON BY LITIGATION

  • Judge Made Rules On The Increase

  • Industry Mounts Campaign To Challenge 'Regulation By Litigation'

  • Public Policies Imposed Through Closed Processes

    CRE Paper on Regulation Through Private Litigation
    CRE is releasing its position paper on Regulation Through Private Litigation, a new escalation in the trend whereby private interest groups use the judicial system to achieve regulatory results they could not obtain through normal legislative or regulatory processes. Regulation Through Private Litigation occurs when private parties (i.e., without government sponsorship) use the court system as a backdoor way to regulate entire industries.

  • Click here to read more
  • Click to submit comment
  • View past CRE Regulatory Action of the Week items


    Off-Register Regulation
    Off-Register Regulation refers to the government issuing regulations without going through the publication of a Federal Register notice and providing the opportunities that the notice and comment process allows for public participation, compliance with all good government authorities including the Paperwork Reduction Act, the Regulatory Flexibility Act, the Unfunded Mandates Reform Act, and the Executive Order on Regulatory Planning and Review, as well as Congressional oversight. The three types of Off-Register Regulation identified by the CRE are:

  • Regulation by Litigation
  • Regulation by Information
  • Regulation by Appropriation
  • Regulation by Litigation
    Regardless of what form it takes, Regulation by Litigation represents a potentially fundamental change in how industry is regulated.

    To encourage a public debate on Regulation by Litigation, the CRE has prepared:

    These examples were chosen for several reasons:

    1. Each active example is a precedent-setting instance of Regulation by Litigation which could have an impact beyond the companies initially involved; and

    2. They represent different types of Regulation by Litigation which are currently in play and/or are likely.

    Each of these examples has an Interactive Public Docket to provide a structured forum for a public debate.

    The CRE is also preparing a discussion of suggested remedies, general and specific, for Regulation by Litigation. The remedies section also has an Interactive Public Docket. Included in this section is discussion of a possible CRE symposium on Regulation by Litigation which would bring together stakeholders including representatives of affected industries and government officials.

    Milton Friedman is quoted as describing the effort by a number of high technology firms to lobby for federal intervention in the computer industry as a "suicidal impulse". The potential for such drastic and unforeseen changes in crucial American industries lead the CRE to undertake a major effort to analyze and report on these efforts to regulate by litigation on an ongoing basis.

    The Washington Post explained the significance of Regulation by Litigation, in an editorial on one of the examples, by stating:

    [I]t nonetheless seems wrong for an agency of the federal government to organize other plaintiffs to put pressure on an industry -- even a distasteful industry -- to achieve policy results the administration has not been able to achieve through normal legislation or regulation. It is an abuse of a valuable system, one that could make it less valuable as people come to view the legal system as nothing more than an arm of policymakers.

    Although the Post's editorial was on only one of the discussed issues, the principles they annunciate apply to all instances of Regulation by Litigation.

    CRE invites you to read the following papers and provide us with your comments:


    Proposed Executive Order on Regulation by Litigation



    CRE has long been concerned regarding Executive Branch efforts to bypass the legislature and to impose regulatory policy objectives through the use of litigation against industries in the private sector. The new Administration could address this problem, at least at the federal level, by issuing an Executive Order on that topic.

    To stimulate discussion, CRE has drafted a proposed Executive Order which would:
    1. Prohibit federal agencies from using taxpayer dollars to fund or encourage damages actions against private industry as a substitute for obtaining authority to regulate from Congress (i.e., any litigation that is not aimed at enforcing compliance with specific statutes or regulations).

    2. Prohibit federal agencies from using taxpayer funds to engage in educational or coalition-building activities that are aimed at coercing private industries to comply with regulatory policy goals that have not been endorsed by the people through the legislative process.

    3. Require OMB to review the litigation activities of federal agencies on an annual basis, and to report to Congress, to ensure that the agencies do not use taxpayer dollars to engage in "Regulation Through Litigation."

    CRE welcomes comments on its draft Executive Order.

    • Click here to review the CRE draft Executive Order on Regulation Through Litigation.
    • Comment on Item
  • Promoting the quality, objectivity, utility, and intergrity of federal government information

    Use of the Internet as a "Backdoor" Federal Register


    CRE Drafts Proposed Executive Order to Prohibit Regulation Through Litigation
    CRE has long been concerned regarding Executive Branch efforts to bypass the legislature and to impose regulatory policy objectives through the use of litigation against industries in the private sector. The new Administration could address this problem, at least at the federal level, by issuing an Executive Order on that topic. To stimulate discussion, CRE has drafted a proposed Executive Order which would: (1) Prohibit federal agencies from using taxpayer dollars to fund or encourage damages actions against private industry as a substitute for obtaining authority to regulate from Congress; (2) Prohibit federal agencies from using taxpayer funds to engage in educational or coalition-building activities that are aimed at coercing private industries to comply with regulatory policy goals that have not been endorsed by the people through the legislative process, and (3) Require OMB to review the litigation activities of federal agencies on an annual basis, and to report to Congress, to ensure that the agencies do not use taxpayer dollars to engage in "Regulation Through Litigation." CRE welcomes comments on its draft Executive Order.

  • Click here to review the CRE draft Executive Order on Regulation Through Litigation.
  • Click to submit comment


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