Cary Coglianese

Cary Coglianese
University of Pennsylvania | UP · Penn Law School

Professor

About

143
Publications
22,210
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Introduction
Cary Coglianese specializes in the study of administrative law and regulatory processes, with an emphasis on the empirical evaluation of alternative processes and strategies and the role of public participation, technology, and business-government relations in policy-making. His current projects address topics such as: regulatory uses of artificial intelligence, regulation and inequality, compliance management systems, climate change regulation, and regulatory politics.
Skills and Expertise

Publications

Publications (143)
Article
Ethical issues surrounding artificial intelligence (AI) take on an added salience when courts, administrative agencies, and other governmental bodies use AI. But governments often must rely on private contractors to help build their AI systems, which presents both a challenge and an opportunity related to AI governance. In defending themselves agai...
Article
Full-text available
As local, state, and federal governments increase their reliance on artificial intelligence (AI) decision-making tools designed and operated by private contractors, so too do public concerns increase over the accountability and transparency of such AI tools. But current calls to respond to these concerns by banning governments from using AI will on...
Article
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At the center of contemporary debates over public law lies administrative agencies' discretion to impose rules. Yet for every one of these rules, there are also unrules nearby. Often overlooked and sometimes barely visible, unrules are the decisions that regulators make to lift or limit the scope of a regulatory obligation through, for instance, wa...
Article
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In the future, administrative agencies will rely increasingly on digital automation powered by machine learning algorithms. Can U.S. administrative law accommodate such a future? Not only might a highly automated state readily meet long-standing administrative law principles, but the responsible use of machine learning algorithms might perform even...
Article
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p>Dimensões da delegação ABSTRACT How can the nondelegation doctrine still exist when the Supreme Court over decades has approved so many pieces of legislation that contain unintelligible principles? The answer to this puzzle emerges from recognition that the intelligibility of any principle dictating the basis for lawmaking is but one characteri...
Article
en As much as environmental problems manifest themselves as problems with the natural environment, environmental problems—and their solutions—are ultimately social and behavioral in nature. Just as the natural sciences provide a basis for understanding the need for environmental policy and informing its design, the social sciences also contribute i...
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Administrative agencies issue many guidance documents each year in an effort to provide clarity and direction to the public about important programs, policies, and rules. But these guidance documents are only helpful to the public if they can be readily found by those who they will benefit. Unfortunately, too many agency guidance documents are inac...
Chapter
Die Beiträge des Sammelbandes beschäftigen sich mit der Frage, wie das Vertrauen in den Staat und seine Gesetzgebung wiederhergestellt werden kann.
Article
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“Meta-regulation” refers to deliberate efforts to induce private firms to create their own internal regulations—a regulatory strategy sometimes referred to as “management-based regulation” or even “regulation of self-regulation.” Meta-regulation is often presented as a flexible alternative to traditional “command-and-control” regulation. But does m...
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p>Desenvolvendo a análise regulatória nas agências independentes Each year, independent regulatory agencies—such as the Federal Communications Commission, Nuclear Regulatory Commission, and Securities and Exchange Commission—issue highly consequential regulations. When they issue their regulations, however, they do not have to meet the same requir...
Chapter
Full-text available
Rethinking Society for the 21st Century - by International Panel on Social Progress (IPSP) July 2018
Article
The Chevron doctrine's apparent simplicity has long captivated judges, lawyers, and scholars. According to the standard formulation, Chevron involves just two straightforward steps: (1) Is a statute clear? (2) If not, is the agency's interpretation of the statute reasonable? Despite the influence of this two-step framework, Chevron has come under f...
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In a series of recent disputes arising under the TBT Agreement, the Appellate Body has interpreted Article 2.1 to provide that discriminatory and trade-distortive regulation could be permissible if based upon a ‘legitimate regulatory distinction’. In its recent compliance decision in the US–Tuna II dispute, the AB reaffirmed its view that regulator...
Article
Machine-learning algorithms are transforming large segments of the economy as they fuel innovation in search engines, self-driving cars, product marketing, and medical imaging, among many other technologies. As machine learning's use expands across all facets of society, anxiety has emerged about the intrusion of algorithmic machines into facets of...
Article
Administrative law constrains and directs the behavior of officials in the many governmental bodies in every country responsible for implementing legislation and handling governance responsibilities on a daily basis. This field of law consists of procedures for decision making by these administrative bodies, including rules about transparency and p...
Article
Recent controversy over the unitary executive may be part of what Steven Calabresi and Christopher Yoo have called the “oldest debate in constitutional law.” Yet in this essay, I ask whether this debate is as much legal as it is political. Focusing on the Environmental Protection Agency’s decision to grant California a waiver from national automobi...
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“Flexible regulation” might sound like an oxymoron but it has become a widely accepted catch phrase for a pragmatic approach to regulation that promises the achievement of important public policy objectives at relatively low cost. Given the growing interest in flexible regulation in recent decades, we consider in this paper what can be learned from...
Article
Deciding whether to regulate involves more than making a choice between complete freedom and total control. Individuals and businesses can be regulated but still retain considerable discretion – even to the point of selecting on their own the rules that apply to themselves. In this paper, we focus on this latter kind of regulation, specifically ass...
Article
Has the United States suffered a regulatory breakdown? The answer to this question might appear to be an obvious “yes.” Over the past several years, the nation has suffered not only a sustained economic downturn triggered by a cataclysmic financial crisis but also one of the worst environmental disasters in American history as well as numerous othe...
Article
One of the most significant powers exercised by federal agencies is their power to make rules. Given the importance of agency rulemaking, the process by which agencies develop rules has long been subject to procedural requirements aiming to advance democratic values of openness and public participation. With the advent of the digital age, governmen...
Article
This article discusses the influence of environmental law on the environment and the economy. Businesses seek to influence the stringency and design of environmental law by lobbying legislators and officials at environmental agencies. Sometimes business groups play a formal, collaborative role in the development of environmental regulations. The ba...
Article
Environmental laws reflect the relationship between law and society and its implications for public health and economy. This article aims to make the central themes and findings from the empirical study of environmental law accessible to legal scholars and social scientists across all fields. It begins with an overview of the making and design of e...
Book
Regulatory Breakdown: The Crisis of Confidence in U.S. Regulation brings fresh insight and analytic rigor to what has become one of the most contested domains of American domestic politics. Critics from the left blame lax regulation for the housing meltdown and financial crisis-not to mention major public health disasters ranging from the Gulf Coas...
Article
One of the most significant powers exercised by federal agencies is their power to make rules. Given the importance of agency rulemaking, the process by which agencies develop rules has long been subject to procedural requirements aiming to advance democratic values of openness and public participation. With the advent of the digital age, governmen...
Conference Paper
Regulatory agencies established to protect the public all face a fundamental challenge: there are many more firms to inspect than there are government personnel to inspect them. For example, more than 50,000 Americans die each year from health and safety hazards at work, but the U.S. Occupational Safety and Health Administration (OSHA) can only vis...
Article
Government regulators have shown considerable interest in encouraging businesses to participate in voluntary environmental programs and practice environmental stewardship in ways that go beyond what regulations require. At the same time, researchers have increasingly worked to understand how businesses respond to regulatory and other government inc...
Article
The study of the politics of regulation has followed two distinct paths in recent years. "New institutionalism" research has focused primarily on the policy-making process, particularly the interplay between regulators (who implement policy) and their political principals (who attempt to control regulators' activity). In contrast, "new governance"...
Chapter
Law plays a central role in the management of risk in society. The rules adopted by regulatory agencies now affect nearly every facet of the economy, and as such regulation has motivated a substantial body of academic research. Law and economics research on regulation has, first, demonstrated the normative justification for governmental interventio...
Article
Regulation scholars have long searched for the best tools to use to achieve public policy goals, generating an extensive body of research on what has become known as instrument choice. By contrast, analysis of options for structuring how officials make regulatory decisions – process choice – remains in relative infancy. Notwithstanding the emphasis...
Chapter
A common set of challenges faced by regulators is to achieve public risk management objectives at lower cost, often by giving greater flexibility to the private sector without sacrificing public health and welfare. In addition to improving existing regulation, challenges increasingly arise from new kinds of risks that seem to evade resolution throu...
Article
While holding great promise, nanotechnology also raises concerns about currently unknown health and environmental risks. The lack of information about these potential risks poses distinct challenges for regulators, who need a clear understanding about problems in order to solve them. Under such circumstances of information scarcity, a strong case c...
Article
Voluntary environmental programs (VEPs) seek to improve the environment by encouraging, rather than mandating, businesses and other organizations to adopt environmentally protective measures. Since the 1990s, VEPs established by industry, government, and nongovernmental organizations have proliferated around the globe, raising the question of how e...
Article
President Obama has trumpeted transparency as a major part of his reform agenda, promising an "unprecedented" degree of governmental openness and overseeing a variety of open government reforms, from changes in Freedom of Information Act policies to the creation of new websites like Recovery.Gov. Although transparency is politically popular, and th...
Article
After several decades’ worth of federal and state regulatory intervention, the quality of the environment in the United States is markedly better today that it was at the founding of the modern environmental era. Nevertheless, environmental regulation remains the target of intense criticism, either for imposing high costs on industry or for failing...
Chapter
As the world's consumers increasingly enjoy the benefits of open trade, the challenges of protecting them from harmful products have grown. The goods they consume are now regularly produced abroad or are sourced with ingredients or parts from an array of countries. The expanding reach of international supply chains means that many producers of good...
Book
On World Food Day in October 2008, former president Bill Clinton finally accepted decade-old criticism directed at his administration's pursuit of free-trade deals with little regard for food safety, child labor, or workers' rights. "We all blew it, including me when I was president. We blew it. We were wrong to believe that food was like some othe...
Article
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With expanding global trade, the challenge of protecting consumers from unsafe food, pharmaceuticals, and consumer products has grown increasingly salient, necessitating the development of new policy ideas and analysis. This chapter introduces the book, Import Safety: Regulatory Governance in the Global Economy, a multidisciplinary project analyzin...
Article
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The U.S. Environmental Protection Agency (EPA) has established numerous voluntary environmental programs over the last fifteen years, seeking to encourage businesses to make environmental progress beyond what current law requires them to achieve. EPA aims to induce beyond-compliance behavior by offering various forms of recognition and rewards, inc...
Article
Each year, federal regulatory agencies create thousands of new rules that affect the economy. When these agencies insulate themselves too much from the public, they are more likely to make suboptimal decisions and decrease public acceptance of their resulting rules. A nonpartisan Task Force on Transparency and Public Participation met in 2008 to id...
Article
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In the past decade, EPA and over 20 states have created voluntary environmental leadership programs designed to recognize and reward businesses that take steps that go beyond compliance with the strictures of environmental law. Environmental leadership programs seek not only to spur direct improvements to environment quality but also to advance bro...
Article
Policy scholars and decision makers should be careful before concluding that President Bush's recent Executive Order 13422 will result in "paralysis by analysis." That lament has been heard about other changes to rule making procedures over the last seven decades, yet steady increases in the cost and volume of federal regulations during that time p...
Article
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Over the past decade, the U.S. Environmental Protection Agency (EPA) and states have developed environmental leadership programs (ELPs), a type of voluntary environmental program designed to recognize facilities with strong environmental performance records and encourage facilities to perform better. Proponents argue that ELPs overcome some of the...
Article
Federal policymakers’ reluctance to enact a comprehensive climate change policy during the past decade has coincided with increased awareness of the inevitability and severity of the problems from global climate change. Thus, it is no surprise that piecemeal, sub-federal policies have garnered considerable support. Bolstered by the political scienc...
Chapter
Throughout the world, governments use regulation to combat monopoly power, protect consumers, and reduce health, safety, and environmental risks. Regulation promotes the safety of transportation, the cleanliness of the air, and the quality of their food and drugs. Today, nearly every major aspect of contemporary public life is significantly affecte...
Chapter
Throughout the world, governments use regulation to combat monopoly power, protect consumers, and reduce health, safety, and environmental risks. Regulation promotes the safety of transportation, the cleanliness of the air, and the quality of their food and drugs. Today, nearly every major aspect of contemporary public life is significantly affecte...
Article
In January 2007, President George W. Bush stirred up widespread controversy by issuing amendments to an executive order on regulatory review adopted initially by President Clinton. The Bush amendments variously require agencies to issue written regulatory problem statements, assign gate-keeping responsibilities to Regulatory Policy Officers within...
Article
Voluntary programs intended to improve corporate environmental practices have proliferated in recent years. Why some businesses choose to participate in such voluntary programs, while others do not, remains an open question. Recent work suggests that companies’ environmental practices, including their decisions to participate in voluntary programs,...
Article
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We examine 89 websites from federal regulatory agencies in order to evaluate their ease of use for those interested in commenting on or learning about their proposed regulations. We find that while there has been a lot of attention given to second and third generation “e-rulemaking” efforts, agency websites, a first generation innovation, still hav...
Article
In this thoughtful and intricate cross-disciplinary debate, Professors Eric W. Orts, of Penn's Wharton School, and Cary Coglianese, of Penn's Law School, discuss the benefits and disadvantages of collaborative public policy decision making in the environmental context. It is no exaggeration to say that each year the world grows ever more aware of t...
Article
Techno-optimists advocate the application of information technology to the rulemaking process as a means of advancing strong democracy -- that is, direct, broad-based citizen involvement in regulatory policy making. In this paper, I show that such optimism is unfounded given the obstacles to meaningful citizen deliberation posed by the impenetrabil...
Article
Parallels between corporate governance and state governance appear to be growing. This essay focuses on the suggestion that corporate governance is becoming structured much more like public government in certain ways. This shift may well be helpful for enhancing credibility and confidence in capital markets, but it also raises important questions....
Article
Full-text available
Regulation of business activity is nearly as old as law itself. In the last century, though, the use of regulation by modern governments has grown markedly in both volume and significance, to the point where nearly every facet of today’s economy is subject to some form of regulation. When successful, regulation can deliver important benefits to soc...
Article
Administrative law scholars and governmental reformers argue that advances in information technology will greatly expand public participation in regulatory policymaking. They claim that e-rulemaking, or the application of new technology to administrative rulemaking, promises to transform a previously insulated process into one in which ordinary cit...
Article
The spate of recent corporate scandals has produced a legislative and regulatory reaction aimed at restoring marketplace integrity. This response – consisting notably of the Sarbanes-Oxley Act of 2002, implementing regulations and stock market listing standards – has, in turn, affected relationships between the chief executive and the board, as wel...
Article
Getting systematic answers to the question of whether environmental policies work is vital. Real resources are expended on environmental regulatory programs, ant at a minimum one should expect that these programs then lead to improvements in environmental conditions. Academics, policymakers, activists and business leaders do generally recognize the...
Article
In recent years, regulatory agencies, Congress, and the White House have taken steps to increase the use of information technology in the management of the rulemaking process. The latest such e-rulemaking effort is the design of a new, government-wide regulatory information system being developed by Bush Administration. The system, known as the Fed...
Article
Improvements in environmental quality depend in large measure on changes in private sector management. In recognition of this fact, government and industry have begun in recent years to focus directly on shaping the internal management practices of private firms. New management-based strategies can take many forms, but unlike conventional regulator...
Article
Whether regulating mutual funds or chemical manufacturers, government's policy decisions depend on information possessed by industry. Yet it is not in any industry's interests to share information that will lead to costly regulations. So how do government regulators secure needed information from industry' Since information disclosed by any firm ca...
Article
Numerous corporate scandals in the past several years have fueled widespread debate over proposals for government action. The central challenge for government is how to restore corporate integrity and market confidence without overreacting and stifling the dynamism that underlies a strong economy. To examine this challenge, the Center for Business...
Article
Regulatory agencies such as the Department of Transportation, Environmental Protection Agency, and Internal Revenue Service face significant information demands in crafting the thousands of new regulations the federal government issues each year. Before adopting new regulations, regulatory agencies must solicit and analyze comments from the public...
Article
Information technology holds the potential for improving the process bywhich government makes regulatory decisions affecting vital aspects of society and the economy. This article charts new directions for research on the application of information technology to regulatory policy making. Drawing on the deliberations from two recent workshops organi...
Conference Paper
Each year hundreds of federal regulatory agencies issue more than 4,000 new regulations. Before adopting a new regulation, agencies must publish a notice of proposed rulemaking in the Federal Register and allow an opportunity for the public to comment on the proposed rule. They also need to complete scientific, engineering, and economic analyses, a...
Article
Fear of physical harm or death has been compensable for a century. Fear, unlike other injuries, is subjective, difficult to quantify, and could lead to limitless liability. Courts seek to balance the amount of fear liability (if there should be any at all) against a perceived need to address and deter fear-related harms. Judges' decisions in fear l...
Article
Promising to cut through regulatory red tape, the U.S. Environmental Protection Agency (EPA) in 1994 launched a four-year initiative that brought together representatives from industrial sectors to develop and institute "cleaner, cheaper, and smarter" approaches to environmental pollution control. But the Common Sense Initiative failed because of o...
Article
The Administration's eRulemaking Initiative will have important implications for access to regulatory information, both for those who work on rules and those organizations and citizens who are affected by rules. These scholars of rulemaking suggest priorities that should guide the eRulemaking Initiative so that all interested parties can better und...
Article
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Regulators must rely on science to understand problems and predict the consequences of regulatory actions, but science by itself cannot justify public policy decisions. We review the Environmental Protection Agency's efforts to justify recent changes to its National Ambient Air Quality Standards (NAAQS) for ozone and particulate matter, showing how...
Article
For too long, environmental policymaking has relied on trial and error, without adequate or systematic learning from either the trials or the errors. Systematic program evaluation research has been remarkably scarce relative to the overall number of environmental policies adopted in the United States, as well as relative to the amount of evaluation...
Article
In the late 1990s, the U.S. Environmental Protection Agency (EPA) conducted what the agency considered to be a "bold experiment" in regulatory reinvention, bringing representatives from six industrial sectors together with government officials and NGO representatives to forge a consensus on innovations in public policy and business practices. This...
Article
Each year, government agencies such as the U.S. Department of Agriculture, Environmental Protection Agency, Federal Aviation Administration, and Nuclear Regulatory Commission collectively promulgate thousands of new regulations. Electronic rulemaking, or e-rulemaking, offers the potential to enhance the public's involvement in the regulatory proces...