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Evidence suggests that gamification increases student engagement in course activities. However, student feedback about gamification in nursing contexts is needed.The aim of this study was to describe nursing student perceptions of how gamification impacts student motivation and engagement.A convergent mixed-methods study was conducted. Surveys were completed by 58 first-year nursing students. Survey comments and data extracted from the learning management system were also collected.Students generally found gamification valuable, interesting, and enjoyable. Gamification took effort and was perceived as important. Students felt that they had some choice in participation in the gamified activities.Gamification is a viable strategy for promoting motivation and engagement among first year nursing students. More qualitative research is needed to enable game design refinement through investigation of contextualized student experiences. Refined game design may impact the development of learner skills through a moderating effect on engagement in course activities.

Background Evidence suggests that gamification increases student engagement in course activities. However, student feedback about gamification in nursing contexts is needed. Purpose The aim of this study was to describe nursing student perceptions of how gamification impacts student motivation and engagement. Methods A convergent mixed-methods study was conducted. Surveys were completed by 58 first-year nursing students. Survey comments and data extracted from the learning management system were also collected. Results Students generally found gamification valuable, interesting, and enjoyable. Gamification took effort and was perceived as important. Students felt that they had some choice in participation in the gamified activities. Conclusions Gamification is a viable strategy for promoting motivation and engagement among first year nursing students. More qualitative research is needed to enable game design refinement through investigation of contextualized student experiences. Refined game design may impact the development of learner skills through a moderating effect on engagement in course activities.

The failure of financial regulators to prevent the systematic Financial Crisis in 2008 has been attributed to a lack of regulatory authority, and there have been new or amended regulatory regimes put in place as a response. Since, however, the lack of sufficient authority was part of a web of regulatory capture that occurred, the financial system remains vulnerable to another financial crisis because only a few of the post-Crisis reforms have been addressed to capture. After defining capture and explaining how it occurred in financial regulation, the chapter ends by discussing structural and procedural reforms that can diminish capture and lessen the likelihood of another financial crisis.

Many non-profits face barriers developing systems to collect and analyze data that can leverage the type of information that their funders and stakeholders require. Constraints such as limited evaluation expertise, time, and money make this virtually impossible to achieve without a viable solution. In an increasingly competitive environment, it is imperative that non-profits find innovative ways to track and measure their work within their evaluative capabilities. There are different ways in which evaluators can help even the most constrained non-profit organizations capture their reach and make the most of their existing data. This article proposes a three-step framework for the development of a data-collection and -analysis system through the use of spreadsheets. Not only is this proposed system feasible within the constraints of the non-profit sector, but it is also valuable for the sustainability of their services over time. De nombreuses organisations a but non-lucratif font face a des obstacles en ce qui concerne la mise en place de systemes de collecte et d’analyse de donnees pour offrir des informations pertinentes pour leurs bailleurs de fonds et parties prenantes. Le fait d’avoir une expertise limitee en evaluation, des contraintes de temps et financieres sont des obstacles qui rendent impossible l’implantation de solutions viables. Dans un environnement de plus en plus concurrentiel, il est imperatif que les organisations a but non-lucratif trouvent des moyens innovants pour monitorer leur travail en respectant leur capacite evaluative. Les evaluateurs disposent de divers moyens pour aider les organisations a but non-lucratif, meme celles disposant de tres minces ressources, a evaluer leur portee et a tirer le meilleur parti des donnees dont elles disposent. Le present article propose une procedure en trois etapes pour l’elaboration d’un systeme de collecte et d’analyse des donnees faisant appel a des chiffriers. Non seulement il est possible d’implanter un tel systeme compte tenu des contraintes du secteur a but non lucratif, mais il apporterait beaucoup pour la perennite des services.

Administrative law protects regulatory beneficiaries when agencies revoke or modify previous rules, but those protections evaporate concerning rulemaking inaction. Inaction has therefore become a strategy of deregulation with the impact of postponing regulation for years, maybe a decade. Despite the difficulty of judging an agency’s claim that it has higher priorities or that it needs more time to make a decision, judges should require more detailed explanations. Although less trusting judicial review is not without its problems, the current approach of abject deference to agency inaction ignores Congress’ commitment to protect people and the environment as specified in an agency’s mandate.

The natural disasters of 2017-19 have exposed weaknesses in our preparation for disaster and climate change. What if we had paid attention — before disaster ensued — to how environmental protection and planning can prevent and minimize the harm that disasters cause to people, their housing, and the infrastructure of our cities, states, and territories? Steps to inform the public about risks, to adopt protective measures, and to enforce health, safety and environmental standards could have minimized the human suffering and loss and minimized the economic costs associated with recovery. This paper explores how such changes in various federal and state laws could make us more resilient.

Although expertise has a starring role in administrative law, there has been a surprisingly impoverished understanding of expertise and its role in the rulemaking process. The failure to understand expertise, which this article explains is more complex and multifaceted that generally understood, is problematic because understandings of expert public administration influence administrative law institutions and practices, and conversely these legal developments condition the creation and use of expert knowledge in public administration. This Article contends that a more complete understanding of expertise indicates how it is possible to have a more workable, and yet accountable, administrative process.More specifically, the article explains how the limited and sometimes misleading understanding of expertise has led to a “rational-instrumental” (RI) accountability paradigm, which distrusts agency expertise and seeks to narrow the policy space in which agency expertise can operate. A more accurate and complete understanding of expertise supports “deliberative-constitutive” (DC) accountability, which has the potential to increase agency effectiveness and still reconcile the administrative state with our constitutional democracy.

Forced arbitration clauses have become almost unavoidable in contracts for financial services and products ranging form credit cards to private student loans. This report examines how the financial services industry uses these clauses to defeat consumers' rights and evade accountability for their wrongdoing.As the report explains, the forced arbitration process harms consumers by relegating them from the civil justice system to an inferior forum for vindicating their rights. In contrast to the courts, forced arbitration tends to be secretive, less independent of industry, more prone to erroneous and arbitrary rulings, more likely to discourage the pursuit of claims with procedural barriers, and more likely to provide inadequate relief for compensating victims of corporate wrongdoing.The report examines the 2016 proposal by the Consumer Financial Protection Bureau (CFPB) to limit the use of forced arbitration clauses in contracts for financial services and products, and finds that the proposal is consistent with the agency's statutory obligation to protect consumers. The report goes on to explain that the CFPB would better fulfill its statutory mandate by revising its proposal to include stronger protections for consumers.

For several decades, corporations intent on avoiding accountability for the harm their products cause have waged a fierce campaign against citizen access to the state and federal civil justice systems. Recently, the chemical industry has devised yet another tactic for advancing the long-running campaign to weaken citizens’ ability to make effective use of the civil justice system: “evidentiary preemption.” The industry is supporting a Senate bill to overhaul the Toxic Substances Control Act (TSCA) — the primary law governing federal regulation of toxic chemicals. This bill — the Chemical Safety Improvements Act (CSIA) — would, among other things, fundamentally alter applicable evidentiary doctrines in many tort cases involving claims of harmful exposures to toxic chemicals. The CSIA would charge the Environmental Protection Agency (EPA) with making “safety determinations” for certain chemicals. The evidentiary preemption provision of the CSIA would then make these safety determinations both automatically admissible in any litigation and force both federal and state courts to recognize the EPA’s conclusions as “determinative of whether the substance meets the safety standard under the conditions of use addressed in the safety determination.” This Issue Alert explains how CSIA’s evidentiary preemption provision would undermine the ability of the civil justice system to hold chemical manufacturers and users accountable for putting people and the environment in harm’s way. We recommend that Congress reject anything like the CSIA’s evidentiary preemption provision when pursuing TSCA reform, and that it likewise reject the inclusion of similar provisions in other bills to update existing environmental, health, and safety statutes.

This white paper shines light on the Office of Advocacy’s anti-regulatory work, examining how its participation in the rulemaking process further degrades an already weakened regulatory system. As a preliminary matter, the nominal objective of the Office of Advocacy — subsidizing small businesses through preferential regulatory treatment — is based on a needless and destructive tradeoff; the government has several policy options for promoting small businesses without sacrificing public health and safety. The Office of Advocacy nevertheless devotes much of its time and resources to blocking, delaying, or diluting regulatory safeguards or to supporting general anti-regulatory attacks from industry and its allies in Congress.The white paper concludes by identifying several reforms that would enable the Office of Advocacy to work constructively with regulatory agencies during the rulemaking process to advance small business interests without undermining those agencies’ mission of protecting public health and safety.

In the United States, the framework for safeguarding people and the environment against the dangers of toxic chemicals comprises three mutually reinforcing legal systems: federal regulation, state and federal civil justice systems, and state regulation. Each part of the framework however, has been substantially weakened — the civil justice systems by years of tort "reform," and federal and state regulatory systems by outdated laws and an ongoing campaign by industry and its allies against protective regulation.Congress is now considering competing bills to fix one part of this framework — the Toxic Substances Control Act (TSCA), the principal statute governing federal regulation of toxic chemicals. The two bills — the more protective Safer Chemical Act (SCA) and the industry-backed Chemical Safety Improvements Act (CSIA) — both fall short of what is needed to fix TSCA, albeit to a widely varying degree — while weakening the civil justice systems and state regulation even more.This Issue Alert seeks to explain how each part of the three-part protective framework contributes to reducing the risks posed by chemicals, and it recommends ways that TSCA reform can strengthen all three parts of the protective framework.

In the debate about health care reform, “defensive medicine” has become a convenient culprit for rising costs and especially rising physician malpractice premiums. Vaguely defined, the phrase, “defensive medicine,” is used to suggest that physicians make medical decisions to avoid potential litigation, instead of with their patients’ health and safety in mind. On the strength of this assertion alone, some policymakers argue for restricting Americans’ right to bring suit to recover damages for medical malpractice. This report demonstrates, however, that the proponents of medical malpractice “reform” lack persuasive evidence that tort litigation against physicians encourages them to make medical decisions that they would not have made otherwise.Powerful business interests have compelling reasons to perpetuate the “defensive medicine” myth. Because the national health care debate has been framed around costs – not patient health and safety or access to care – the “defensive medicine” message has been successfully deployed to restrict Americans’ access to the courts in many states. Meanwhile, “defensive medicine” also serves as a politically expedient straw man, allowing policymakers and the insurance industry to ignore or obscure the real drivers of rising medical costs, including the high costs of prescription drugs; the high demand for, and increasing use of, state-of-the-art technology; the growing incidence of chronic diseases; and an aging population that lives longer and consumes more medical care.This report first establishes that an intact and robust civil justice system is necessary to the health of society and exposes how rarely doctors are actually being sued. Next, it examines why doctors order tests and procedures. It then surveys available empirical evidence showing that a supposed “defensive medicine” mindset has little impact on medical decisions or on medical practice costs. The report also exposes extraordinary shortcomings in the methodology and academic rigor of the evidence most frequently cited by civil justice opponents.The evidence reveals that “defensive medicine” is largely a myth, proffered by interests intent on limiting citizen access to the courts for deserving cases, leaving severely injured patients with no other recourse for obtaining the corrective justice they deserve. These changes would limit the deterrent effect of civil litigation and diminish the regulatory backstop that the civil justice system provides to the professional licensing system, leading to more medical errors. Restricting lawsuits might save doctors a negligible amount on malpractice premiums but the vast majority of any savings will most certainly line the pockets of the insurance companies demanding these restrictions. On the other hand, buying into this myth has very real and dangerous consequences. Allowing civil justice opponents to pretend that constraining the civil justice system equates to meaningful health care reform distracts us from doing the things that must be done to fix the system, including avoiding the 98,000 deaths caused by preventable medical errors every year and reducing the unacceptable number of uninsured Americans.

Congress enacted the Occupational Safety and Health Act more than 40 years ago. A transformative law at the time it was passed, the OSH Act has not proved nimble enough to address the evolving challenges faced by U.S. workers. In this paper, we discuss how changes to the OSH Act and its implementing regulations and policies could better empower workers to ensure that all workers have safe and healthy workplaces. We focus on workers and their power to influence the policies that keep them safe and healthy on the job. Numerous issues affect workers’ health and safety, from workers’ compensation reform to health care policies to wage and hour problems, but we focus here on health and safety regulation by federal agencies.Worker empowerment: We propose strenghtening education and training requirements as the first step toward empowering workers. To ensure that new knowledge and training can be put to use, we propose establishing a private right-of-action to enforce the OSH Act, much like the "citizen suit" provisions of environmental laws.Enforcement: We urge Congress to amend the OSH Act to increase criminal fines and jail time for employers who violate the statute and its impelementing regulations. Civil enforcement could be enhanced through use of administrative compliance orders, the Responsible Corporate Officer doctrine, the Alternative Fines Act, and inflation-adjusted penalties. We also encourage OSHA to revamp its procedures for investigating fatalities and involving workers and their representatives in enforcement proceedings.Administrative issues: Recognizing OSHA's need for additional resources, we suggest that Congress and the agency explore whether certain programs (e.g., the Voluntary Protection Program) should be funded through user fees. We also discuss OSHA's role in overseeing state-plan programs. We urge Congress to abolish the split-enforcement model that relies on the independent Occupational Safety and Health Review Commission to adjudicate cases. Finally, we discuss reforms to the rulemaking process that would speed the development of new safety and health standards.

Attacks on regulation have become commonplace in Washington, D.C., and on the campaign trail. Regulatory opponents in Congress have sought to translate their attacks on regulation into legislative proposals that, if enacted, would subvert the process by which regulatory agencies carry out their statutory mission of developing and implementing rules.One of these anti-regulatory proposals, “regulatory pay-go,” embraced by Republican presidential nominee Mitt Romney, relies on a gimmick: It would prohibit agencies from issuing new rules, no matter how beneficial they are, unless they first identify and eliminate an existing rule that involves greater or equal costs for industry. Regulatory pay-go thus creates an overall regulatory “budget,” and by placing an arbitrary cap on new safeguards, it seeks to keep that budget of total regulatory costs from growing, without regard to the hazards from which those regulations protect Americans.This CPR Issue Alert examines regulatory pay-go in greater detail, finding that it would further undermine the U.S. regulatory system’s capacity to protect people and the environment while doing nothing to improve the economy. The proposal is based on a dogmatic assumption that social benefits from regulation cannot possibly justify any increase in overall regulatory costs. Supporters of regulatory pay-go have not and cannot provide empirical support for this categorical assumption that ignores a long history of regulations saving lives, preventing injuries, and protecting property and the environment. Among its many implementation problems, regulatory pay-go would operate as a one-way ratchet, gradually reducing safeguards over time, and it would add to the already massive procedural obstacles agencies must overcome to continue protecting people and the environment against new and emerging threats. If adopted as an executive order, it would be illegal. If adopted as legislation, it would create a litigation nightmare.

The administrative presidency, congressional oversight and judicial review, are efforts to control bureaucratic discretion from outside of the agencies. Administrative law focuses almost exclusively on such "outside-in" accountability. Meanwhile, public administration scholars discuss the potential of "inside-out" approaches: managerial controls and professionalism. We propose a model of bureaucratic behavior that identifies the ideal conditions for inside-out accountability. By postulating that self-interested and other-regarding motives of bureaucrats can both be present to varying degrees in different agency environments (something that the competing public choice model does not do), our approach allows government redesign to respond to empirical learning in public administration scholarship. This learning suggests overall accountability can be enhanced if the tools of the administrative presidency (political appointments and centralized control) are reduced in favor of enhanced inside-out approaches in appropriate contexts.

In administrative law, as elsewhere, empirical studies confirm that ideology affects judicial review of agency action to an alarming degree. After summarizing and analyzing empirical studies of judicial review in administrative law, this article proposes four models of judicial behavior that can explain the politicization of judging. While all four models are based on the literature, the article uniquely compares and contrasts them. Based on the models, the article then explores three improbable possibilities for ameliorating politicized judging. The first and least promising contemplates making administrative law clearer and more determinate, thereby depriving judges of the discretion necessary for political preferences to affect their decision-making. The second requires judges to discuss openly their political and policy preferences when explaining their administrative law decisions. The third possibility is the most plausible, least ambitious, and simplest: Require five-judge panels for a well-defined set of significant agency actions - e.g., legislative rules with significant economic effects promulgated through notice-and-comment.

This white paper starts from the recognition that the value of the regulatory system cannot be captured in a single number or metric, such as the concept of net benefits often touted by conservative economists. Instead, one must look at a more complex mosaic of evidence. When compiled and evaluated holistically, this evidence demonstrates unequivocally that regulation has benefited the U.S. greatly, while the failure to regulate has cost us dearly.The evidence considered in this paper includes:- Several studies that aggregate the costs and benefits of a defined group of regulations (e.g., OMB’s annual reports);- Several specific examples of regulatory successes;- Estimates of the costs of failing to regulate (including both day-to-day hazards as well as catastrophes);- Retrospective evaluations of individual regulations (specifically, the lookbacks conducted under Section 610 of the Regulatory Flexibility Act); and- Prospective cost-benefit analyses of individual regulations.The white paper discusses the flaws of each type of evidence, and thus takes an appropriately critical look at what that evidence can say about the value of regulation.With such limitations in mind, the white paper reviews the available evidence and finds that these benefits have been a bargain for the United States. Specifically, regulations have produced little or no economic disruption and have no clear negative impacts on employment.

Every year, a number of major industrial catastrophes occur in the United States. They often result in tragic losses in terms of human life and environmental degradation. They also produce substantial losses for the U.S. economy, sidelining industrial capacity and wasting millions, if not billions, of dollars. While such catastrophes are not entirely preventable, two bedrock U.S. legal institutions – the regulatory and civil justice systems – offer powerful tools for avoiding them, if they are permitted to function effectively. In recent years, however, both the regulatory and civil justice systems have been marked by dysfunction and constraints. Years of attack by the anti-regulatory and tort reform movements, respectively, have left these systems unable to fulfill their respective functions, and set the stage for major catastrophes like the BP oil spill. Unless these systems are reinvigorated and freed from unnecessary constraints, the likelihood of another industrial catastrophe will remain unacceptably high. This white paper carefully examines the BP oil spill as a case study in regulatory failure and the erosion of tort law. The paper first explains how the regulatory and civil justice systems form a complex and dynamic partnership for protecting both people and the environment. Next, it reviews both regulatory failures and civil justice constraints that affected the offshore oil drilling industry, and how they enabled BP’s corporate culture – which willingly sacrificed worker safety and environmental protection in pursuit of ever-greater profits – to thrive. The paper concludes by exploring potential legal reforms that could reduce or eliminate some of the civil justice constraints that contributed to the BP oil spill. While regulatory failures and civil justice constraints contributed to the BP oil spill, the civil justice system still has a chance to help remedy the situation by holding BP accountable for its negligent or perhaps reckless behavior, and by adequately compensating the victims of this catastrophe. At the moment, it appears that the Gulf Coast Claims Facility (GCCF) – the BP-established $20 billion alternative settlement fund being administered by Ken Feinberg – will serve as the primary mechanism by which many of the oil spill victims will seek compensation. It is still unclear how well this settlement process or the more traditional civil justice system will fulfill their corrective justice functions in this case. However, if these legal mechanisms are going to deter unreasonably risky action by oil companies in the future, it is imperative that they play their corrective justice roles well by compensating the victims for all of their losses in the months and years to come. The effective functioning of these compensation mechanisms, along with the implementation of the reforms discussed in this paper, will help us to better avoid industrial catastrophes in the future.

Inside the U.S. federal courts, ordinary Americans have long been able to air their complaints and obtain justice, and through their individual legal victories, they have advanced important national goals, including public health and safety, environmental protection, civil rights, and fair competition for small businesses. Before they could win their cases, however, plaintiffs had to get the federal courts to agree to hear their complaints in the first place – a step in the litigation process known as pleading. In effect, the pleading serves as the key to the courthouse door.The courthouse door has become considerably more difficult to open in recent years, thanks to two U.S. Supreme Court opinions, Bell Atlantic v. Twombly and Ashcroft v. Iqbal. In their rulings in these cases, the Court created “plausibility pleading,” a new and heightened standard that plaintiffs must satisfy in order to proceed to the next phase of litigation.This higher pleading standard replaced “notice pleading” – an objective pleading standard that had prevailed for nearly 80 years. The Federal Rules of Civil Procedure – the body of rules that governs how federal civil trials are conducted – first established this objective pleading standard in order to promote its goal of resolving cases on their merits following an adequate opportunity for full disclosure of relevant information. Under this standard, a plaintiff needed to only give the defendant and the court “notice” of the general nature of their claim by asserting a set of facts that briefly explained how the defendant had harmed them. Once they cleared that bar, the case would enter the “discovery” phase, during which plaintiffs would either develop – or fail to develop – the evidence to make their case in court. In contrast, plausibility pleading effectively requires the plaintiffs “prove” their case before they have had any chance to examine evidence in possession of the defendant or question witnesses – things that normally happen during discovery. The practical effect of plausibility pleading is that many deserving plaintiffs will never get through the courthouse door, and will be denied the opportunity to make their case to a judge or jury.This white paper explains why Congress should take immediate legislative action to reverse the Twombly and Iqbal decisions. Specifically, the paper offers the following criticisms of plausibility pleading:1. Notice pleading is more consistent with the language and goals of the Federal Rules of Civil Procedure.2. Plausibility pleading will undermine the effective functioning of both the federal civil litigation system and the federal regulatory system.3. The Supreme Court’s policy arguments in favor of plausibility pleading do not hold up under closer scrutiny.

For almost all of the last 30 years, cost-benefit analysis (CBA) has been the principal yardstick by which federal regulatory agencies measured the value of regulatory protections for health, safety, and the environment. During that time, its failings have been laid bare repeatedly. It overstates the “costs” of regulation, often because it relies on inflated estimates from industry, and understates the benefits, sometimes ignoring huge benefits altogether because their dollar values are not readily fixed. It has been subject to gross political manipulation. And it has produced absurd results, leaving people and the environment vulnerable to unnecessary and unjustifiable risks.While proponents of CBA sometimes acknowledge that their method of regulatory impact analysis is flawed, they routinely assert that there is no better method. This white paper demonstrates otherwise, proposing that agencies adopt a method of regulatory decisionmaking called “pragmatic regulatory impact analysis” (PRIA). In many ways, PRIA represents a a return to the original “pragmatic” approach to regulatory decisionmaking that agencies employed before the advent of CBA. PRIA would:1. Focus on the decisionmaking criteria that Congress established in the various the health, safety, and environmental statutes;2. Take into account the informed input of a broad range of agency experts with relevant expertise regarding the risk to be addressed and how best to respond to it; and3. Seek to fulfill the precautionary objectives of these statutes by enabling agencies to take regulatory actions consistent with the best judgment of fully informed agency experts and administrators.PRIA would require agencies to make their decisionmaking more explicit and transparent by adding three procedural reforms:1. Pre-decisional development. A document labeled a “pragmatic regulatory impact analysis” (PRIA) would be developed as soon as an agency begins the process of considering a new regulation. At the outset, the PRIA would serve as the repository of the substantive issues the agency’s multi-disciplinary team believed it must inves tigate before formulating an actual rulemaking proposal. PRIAs would thus become the blueprint for the process, undergoing constant change, as the agency understood the issues better.2. Public notification. The PRIA document would be published before a Notice of Proposed Rulemaking (NPR) is released. An NPR is a standard rulemaking document in which an agency typically announces a proposed rule, providing along with it an explanation of how it tentatively resolved each of the preliminary issues that needed to be sorted out in order to justify its proposed rule. The PRIA document would function as a discussion draft of the NPR by offering a clear and concise overview of the key issues an agency must resolve before it can issue a NPR. PRIA therefore would not only assist agency officials in formulating a NPR, it would provide the public with the background to the NPR in an accessible and understandable format.3. Public input. In appropriate situations, agencies could invite public comment on the PRIA document. Under current practice, an agency sometimes issues an Ad vanced Notice of Proposed Rulemaking (ANPR), which proposes various policy options to the public and requests comment on them. But the PRIA document would provide a more in-depth analysis of the issues at stake and the advantages and disadvantages of different policy options. Accordingly, it would produce more informed public input and be of more assistance to the agency.

During the Bush II Administration, the Federal Railroad Administration (FRA), the federal agency charged with overseeing railroad safety, aggressively asserted the preemptive authority of its regulations, continuing to write broad preemption language into the preambles to its rules asserting that injured parties have no ability to seek compensation for their injuries or loss of loved ones, and even ignoring Congress’ attempt to amend the Federal Railroad Safety Act, the statute that governs federal railroad safety, to clarify that regulations issued under the statute are not intended to preempt state tort law.The white paper argues that the FRA should discontinue its efforts to preempt state tort law, explaining that a complementary system of federal regulatory standards and state common law is the best way to achieve railroad safety for passengers and railroad employees. In brief, it argues that a complementary tort system should be retained because:1. The FRA is a resource-starved agency unable to prevent accidents: State common law provides a backstop for the failure of the agency to adequately investigate accidents or enforce its regulations. 2. The FRA is captured by industry: Because the agency has placed so much responsibility with industry to regulate itself, the tort system is needed to serve as an independent monitor of industry’s activities to ensure they are undertaken with safety in mind.3. The FRA is unable to hold railroads accountable for improving safety: The agency relies on the railroad industry as a partner in doing its job, which hinders its ability to spur the railroad industry into taking appropriate measures to prevent railway accidents.4. State common law preserves corrective and protective justice: A person’s right to seek redress for harm inflicted on him or her should never be obliterated by federal preemptive power.The white paper concludes by offering various recommendations for how the FRA and Congress can each promote the complementary roles that federal regulation and state common law can play in ensuring greater railroad safety.

In the last several years, dramatic failures of the nation’s food safety system have sickened or killed tens of thousands of Americans, and caused billions of dollars of damages for producers and distributors of everything from fresh vegetables to granola bars and hamburger meat. In each case, the outbreak of food-borne illness triggered what can only be described as a frantic scramble by health officials to discover its source. Inevitably, the wrong lead is followed or a recall is too late or too narrow to prevent further illnesses, and the government has to defend itself against withering criticism. Americans expect more from the experts at the Food and Drug Administration (FDA) and their counterparts at the Department of Agriculture, but the simple truth is that they are ill-equipped to deliver. The food safety system typifies the debilitated state of the entire regulatory system that Americans rely upon to protect their health, safety, and environment. The five “protector agencies” - FDA, the Occupational Safety and Health Administration (OSHA), the Consumer Product Safety Commission (CPSC), the National Highway Traffic Safety Administration (NHTSA), and the Environmental Protection Agency (EPA) - all grapple with hefty responsibilities to protect the American public from constantly evolving hazards.The agencies have done an adequate job of eliminating or managing the basic hazards of modern industrial society. Every new car has seatbelts and passive restraints, the use of lead in gasoline and residential paint has been eliminated, and air quality has improved in many areas. Unfortunately, this progress has been marred by a series of high-profile failures. OSHA has failed to prevent musculoskeletal injuries, the leading cause of workplace illness; billions of consumer products enter the country from foreign manufacturing sites that are never inspected by product safety specialists; and the EPA is just beginning to map out a strategy for combating climate change, a threat that could eliminate 40 percent of species and lead to the relocation of hundreds of millions of people by the turn of the century. The agencies’ inability to act swiftly and decisively in the last several decades is largely the result of four problems: Severe shortfalls in funding, outdated authorizing statutes, political interference, and an aging, demoralized civil service. Regulatory dysfunction begins with funding gaps that defeat agency efforts to fulfill the statutory mandates assigned by Congress. These shortfalls, which push the agencies into a state of constant default on their most important missions, are compounded by congressional neglect of its oversight and reauthorization responsibilities. With two exceptions - the Consumer Product Safety Commission Improvement Act and the FDA Amendments Act of 2007 - Congress has made no effort to renew and update the statutes in at least two decades. Compounding these problems, the protector agencies operate under the watchful eye of White House political staff who frequently and freely substitute their own judgments for those of agency staff, offering a back door for special interests disappointed in decisionmaking by agency experts to exert inappropriate influence, most often behind closed doors. The solutions to these problems - statutory amendments, an improved budget process, decentralized decisionmaking, and civil service reforms - are not simple fixes. But the alternative is a regulatory system that reverts to a purely reactionary mode, leaving public health, safety, and environmental protection to the whims of the marketplace.

The Role of Peer Review in the Crusade for “Sound” Science Because the public at large strongly supports a prominent government role in protecting health and safety, opponents of regulation have tried to put a more acceptable face on their efforts by cloaking their opposition as a demand for “sound science.” As professors Thomas McGarity and Donald Hornstein have explained in Chapters 1 and 5 of this book, rather than dispute the public policies behind protective regulation of people and the environment, the “sound-science” campaign attempts to convince the public that strong regulation lacks an acceptable scientific rationale. This approach gives regulatory opponents the advantage of casting themselves as favoring regulatory protection in general, but allows them to combat specific regulations on the grounds that such measures are based on poor – or “junk” – science. The “sound-science” campaign seeks to blur the crucial distinction between incomplete data and poor-quality data. For example, an excellent study of the adverse health effects caused by heightened blood lead levels can be incomplete with respect to the hazards of heightened levels of lead in the air if the rates of transfer between airborne lead and blood lead are poorly understood. Regulatory opponents seek to convince the public that the absence of knowledge about air-to-blood transfer rates means that the scientific evidence about the hazards of lead to human health is of poor quality.

This essay is part of a symposium that comments on the impact of Richard Stewart's seminal article, The Reformation of American Administrative Law. The reformation has been followed by a counterreformation that is based on a set of premises that run directly counter for the premises of the reformation. Recently, some scholars, including Professor Stewart, have sought to move beyond the counterreformation, which they find insufficient to produce sound and legitimate government. This literature, like the earlier literature on the reformation and the counterreformation, adopts interest group pluralism as the basis of the administrative process. This essay evaluates the reformation, the counterreformation and the most recent scholarship through a different lens. As I have in other recent work, I propose that the American tradition of philosophical pragmatism offers the best methodology to evaluate and justify the administrative process. This approach leads me to three general conclusions. First, the reformation has been a greater success than Professor Stewart recognizes in the Reformation or his subsequent work. Second, the counterreformation has produced changes in the administrative process that cannot be justified as either improving the rationality of regulation or the legitimacy of the process. Finally, we should be quite cautious about implementing recent proposals by Professor Stewart and others because the available evidence indicates the methods that they favor only work in some specific contexts.

The constitutionality of legislative preclusion of judicial review has received considerable attention from constitutional and administrative law scholars. We join this debate by proposing a new approach: a standards-based theory of judicial review based on two fundamental principles. First, whenever government officials make decisions involving the application of legal standards, the rule of law - and hence the rule of law safeguards of due process and judicial review - attach. Second, with the exception of those cases in which the Constitution itself contemplates standardless official discretion, legislative delegations of authority to government actors must contain legal standards that guide and control discretion. Because the availability of judicial review is tied to the existence of standards and standards are in most instances constitutionally required, the standards-based approach supports a broad right to Article III judicial review that would encompass most administrative decisions, including decisions concerning government benefits. We are not the first scholars to argue that the Constitution requires Article III review of government benefit decisions (or other agency action), but the standards-based approach offers a novel and, we believe, more coherent and workable approach to these fundamental constitutional issues. In support of these conclusions, we demonstrate how the Court's current approach to preclusion is plagued by doctrinal incoherence that ultimately permits Congress to curtail or dispense with this essential rule of law safeguard. We also explain how a standards-based approach can be reconciled with constitutional text and Supreme Court authority, noting in particular that Marbury v. Madison, the seminal opinion concerning the rule of law, indicates that Article III review of the government benefit decisions of the Executive Branch is constitutionally compelled.