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New study by Prof. Coglianese shows that ‘unrules’ are ubiquitous in U.S. regulatory system and require greater oversight

May 03, 2021

In “Unrules,” recently published in the Stanford Law Review, Edward B. Shils Professor of Law and Professor of Political Science Cary Coglianese, Gabriel Scheffler of the University of Miami School of Law, and Daniel Walters of Penn State Law present their findings from the “first systematic empirical investigation of the hidden world of unrules”: evidence that challenges the widespread perception of the U.S. regulatory system as inflexible and burdensome.

By contrast, the authors show that the system has tremendous opportunities for flexibility, or what the authors call “obligation alleviation.” But Coglianese also notes that the study “offers reasons to worry about a bias in our administrative law system that allows agencies bent on alleviating regulatory responsibilities to escape from the same kind of procedural protections and judicial scrutiny that apply when agencies impose new obligations.”

The authors define “unrules” as “the decisions that agencies make to lift or limit the scope of a regulatory restriction, for instance through waivers, exemptions, and exceptions.” Although such unrules can have positive effects such as reducing burdens on regulated entities or making law more efficient through the conservation of government resources, if left unchecked, they can “facilitate undue business influence over the law, weaken regulatory schemes, and even undermine the rule of law.”

By applying the study’s “computational linguistic approach” to the Federal Register, Code of Federal Regulations, and U.S. Code, Coglianese and his coauthors reveal that “there exists one obligation-alleviating word for approximately every five to six obligation-imposing words in federal law.” The authors show both the ubiquity of unrules throughout federal regulatory law and how these obligation-alleviating tools operate with much less oversight on regulators’ discretion.

“As a result, a major form of agency power remains hidden from view and relatively unencumbered by law,” they write. “Recognizing the central role that unrules play in our regulatory system reveals the need to reorient administrative law and incorporate unrules more explicitly into its assumptions, doctrines, and procedures.”

Coglianese specializes in the study of administrative law and regulatory processes and is the Director of the Penn Program on Regulation. He was a founding editor of the peer-reviewed journal Regulation & Governance, and he founded and continues to serve as advisor to The Regulatory Review.

His research and scholarship focuses on the empirical evaluation of alternative processes and strategies in the role of public participation, technology, and business-government relations in policy-making.

Coglianese’s books include Achieving Regulatory Excellence (Brookings Institution Press, 2016); Does Regulation Kill Jobs? (University of Pennsylvania Press, 2014); Regulatory Breakdown: The Crisis of Confidence of US Regulation (University of Pennsylvania Press, 2012); Import Safety: Regulatory Governance in the Global Economy (University of Pennsylvania Press, 2009); Regulation and Regulatory Processes (Ashgate, 2007); and Leveraging the Private Sector: Management-Based Strategies for Improving Environmental Performance (Routledge, 2006).

He has also recently written on climate change policy, public participation and transparency in federal rulemaking, the use of artificial intelligence by government agencies, and voluntary environmental programs.

Coglianese’s co-authors on this study — Scheffler and Walters — are both former fellows of the Penn Program on Regulation.