Unrules

84 Pages Posted: 16 Oct 2020 Last revised: 30 Apr 2021

See all articles by Cary Coglianese

Cary Coglianese

University of Pennsylvania Law School

Gabriel Scheffler

University of Miami School of Law

Daniel Walters

The Pennsylvania State University (University Park) – Penn State Law

Date Written: April 2021

Abstract

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, for instance through waivers, exemptions, and exceptions. In some cases, unrules enable regulators to reduce burdens on regulated entities or to conserve valuable government resources in ways that make law more efficient. However, too much discretion to create unrules can facilitate undue business influence over the law, weaken regulatory schemes, and even undermine the rule of law. In this paper, we conduct the first systematic empirical investigation of the hidden world of unrules. Using a computational linguistic approach to identify unrules across the Federal Register, the Code of Federal Regulations, and the United States Code, we show that unrules are an integral and substantial feature of the federal regulatory system. Our analysis shows that, by several conservative measures, there exists one obligation-alleviating word for approximately every five to six obligation-imposing words in federal law. We also show that unrules are surprisingly unrestrained by administrative law. In stark contrast to administrative law’s treatment of obligation-imposing rules, regulators wield substantially more discretion in deploying unrules to alleviate regulatory obligations. As a result, a major form of agency power remains hidden from view and relatively unencumbered by law. 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.

Keywords: rules, regulations, administrative law, regulatory burdens, legal obligations, exceptions, waivers, exemptions, variances, grandfathering, loopholes, empirical legal studies, computational linguistics, text analysis, judicial review, procedure, transparency, deregulation, capture, political economy

Suggested Citation

Coglianese, Cary and Scheffler, Gabriel and Walters, Daniel, Unrules (April 2021). Stanford Law Review, Vol. 73, Pg. 885, 2021, U of Penn Law School, Public Law Research Paper No. 20-37, Penn State Law Research Paper No. 22-2020, Available at SSRN: https://ssrn.com/abstract=3701841

Cary Coglianese (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-898-6867 (Phone)

HOME PAGE: http://www.law.upenn.edu/coglianese

Gabriel Scheffler

University of Miami School of Law ( email )

1311 Miller Dr.
Coral Gables, FL FL 33146
United States

Daniel Walters

The Pennsylvania State University (University Park) – Penn State Law ( email )

Lewis Katz Building
University Park, PA 16802
United States

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