WHAT INFLUENCES REGULATION AND REGULATORS?

SYLLABUS, FALL 2014

GOVERNMENT INTERVENTION IS PERVASIVE. It helps and hurts the general public, creates and destroys private profits and advances or undermines ideological agendas. What are the forces that underlie regulatory policy and practice? What motivates intervention and regulation in legislatures and regulatory agencies? How can interested parties influence them? We can’t cover even a small fraction of the political universe that influences private and government behavior, but we can look for issues and behaviors common to regulation, deregulation, and regulatory activity.

SEPTEMBER 3, 2014

WELCOME TO WASHINGTON

“For Freshmen in the House, Seats of Plenty” By , , August 19, 2013, http://www.nytimes.com/2013/08/11/us/politics/for-freshmen-in-the-house-seats-of- plenty.html?_r=0

“From Outside or Inside the Deck Looks Stacked” By Gretchen Morgenson The New York Times, APRIL 26, 2014, http://www.nytimes.com/2014/04/27/business/from-outside-or-inside-the-deck-looks- stacked.html

“Minding the Minders of GM” By Jackie Calmes, The New York Times, APRIL 5, 2014, http://www.nytimes.com/2014/04/06/business/minding-the-minders-of- gm.html?ref=business&_r=0

“When She Talks, Banks Shudder” By Binyamin Applebaum The New York Times, AUG. 9, 2014, http://www.nytimes.com/2014/08/10/business/when-she-talks-banks-shudder.html

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“Too Big to Regulate” By The Editorial Board, The New York Times, AUG. 9, 2014, www.nytimes.com/2014/08/10/opinion/sunday/too-big-to-regulate.html?ref=opinion

SEPTEMBER 10, 2014

HOW CAN WE EXPLAIN REGULATION? HOW CAN WE JUSTIFY IT?

S.P. Croley, Regulation and Public Interests: “The Possibility of GOOD Regulatory Government (2008)”, pp. 53-72

SEPTEMBER 17, 2014

WHO CAN SELL CASKETS? CAN GOVERNMENT PICK AND CHOOSE?

http://www.ij.org/oklahoma-caskets-background

Powers v. Harris, 379 F. 3d 1208 – U.S. Court of Appeals, 10th Circuit 2004 https://law.resource.org/pub/us/case/reporter/F3/379/379.F3d.1208.03-6014.html

St. Joseph’s Abbey v. Castille - U.S. Court of Appeals, Fifth Circuit March 20, 2013 http://caselaw.findlaw.com/us-5th-circuit/1626080.html

SEPTEMBER 24

THE PUBLIC INTEREST

S. Breyer, Regulation and Its Reform (1982), 15-36, 189-196

OCTOBER 1, 2014

REGULATORY CAPTURE IN THEORY AND PRACTICE

G. Stigler, “The Theory of Economic Regulation”, The Bell Journal of Economics and Management Science, Vol. 2, No. 1, Spring, 1971 pp. 3-7, 10-13, 17-18 http://www.jstor.org/stable/3003160

M.E. Levine, “Regulatory Capture” The New Palgrave Dictionary of Economics and the Law, 267-271

“Regulatory Capture of the FCC -- Time to Clean House”, By Bruce Kushnick, The Huffington Post, March 25, 2013 http://www.huffingtonpost.com/bruce-kushnick/regulatory-capture-of-the_b_2936693.html

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“Richer Farmers, Bigger Subsidies” By James B. Stewart, The New York Times , July 19,2013, http://www.nytimes.com/2013/07/20/business/richer-farmers-bigger-subsidies.html?_r=0

OCTOBER 8, 2014

HOW INFLUENCE WORKS

J. Birnbaum The Lobbyists, v-viii, xi-21; 62-101; 188-229; 252-300.

OCTOBER 15, 2014

CHOOSING AND USING REGULATION

Edmund W. Kitch, Marc Isaacson and Daniel Kasper , “The Regulation of Taxicabs in Chicago”, Journal of Law and Economics, Vol. 14, No. 2 (Oct., 1971), pp. 285-350 http://www.jstor.org/stable/724949?seq=1&Search=yes&list=hide&searchUri=%2Faction%2Fdo AdvancedSearch%3Fwc%3Don%26amp%3Bsd%3D%26amp%3Bpt%3D%26amp%3Bq4%3D%2 6amp%3Bq5%3D%26amp%3Bq6%3D%26amp%3Bq0%3Dtaxi%2Btaxicab%2Bregulation%26am p%3Bq1%3DKitch%26amp%3Bq2%3D%26amp%3Bq3%3D%26amp%3Bla%3D%26amp%3Bisb n%3D%26amp%3Bacc%3Don%26amp%3Bc6%3DAND%26amp%3Bc4%3DAND%26amp%3B c5%3DAND%26amp%3Bc2%3DAND%26amp%3Bc3%3DAND%26amp%3Bc1%3DAND%26a mp%3Bf1%3Dall%26amp%3Bf0%3Dall%26amp%3Bf3%3Dall%26amp%3Bf2%3Dall%26amp%3 Bf5%3Dall%26amp%3Bf4%3Dall%26amp%3Bf6%3Dall%26amp%3Bed%3D&prevSearch=&resu ltsServiceName=null

“ Moves to Slow Growth of Popular Green-Cab Fleet” by Michael M. Gynbaum and Matt Flegenheimer, The New York Times, MAY 15, 2014, http://www.nytimes.com/2014/05/16/nyregion/new-york-city-moves-to-slow-growth-of-popular- green-cab-fleet.html

““All Hail the "Sharing Economy!" A Mushy Phrase Gives Liberals Cover to Join the Fight Against Big Government” By Jim Epstein, Reason, May. 13, 2014 4:31 pm http://reason.com/archives/2014/05/13/all-hail-the-sharing-economy-a-mushy-phr

“The Airbnb Economy in New York: Lucrative but Often Illegal” By Elizabeth A. Harris, The New York Times, November 4, 2013 http://www.nytimes.com/2013/11/05/nyregion/the-airbnb-economy-in-new-york-lucrative-but- often-unlawful.html

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“Uber, Lyft and a Road Map for Reinventing the Ride” By Neil Irwin, The New York Times, JULY 11, 2014, http://www.nytimes.com/2014/07/12/upshot/uber-lyft-and-a-road-map-for-reinventing-the- ride.html?module=Search&mabReward=relbias%3Aw%2C{%221%22%3A%22RI%3A9%22}&_r =0

“Rough Patch for Uber Service’s Challenge to Taxis” The New York Times, JAN. 26, 2014, by David Streitfeld http://www.nytimes.com/2014/01/27/technology/rough-patch-for-uber-services-challenge-to- taxis.html?

“London cabbies and Uber face legal battle over taximeter row” By Tom Newcombe - 30 May 2014 http://buyingbusinesstravel.com/news/3022555-london-cabbies-and-uber-face-legal-battle-over- taximeter-row

“Lyft Expands Its Car Hailing Service to New York” by Mike Isaac, The New York Times Bits Blog, July 8, 2014 3:00 pm July 9, 2014 9:53 am, http://bits.blogs.nytimes.com/2014/07/08/lyft-expands-its-car-hailing-service-to-new-york- city/?_php=true&_type=blogs&module=Search&mabReward=relbias%3Ar%2C{%221%22%3A% 22RI%3A5%22}&_r=0

“Car-Hailing Service, Lyft, Reaches Deal to Operate in New York City” The New York Times, JULY 25, 2014, by Matt Flegenheimer http://www.nytimes.com/2014/07/26/nyregion/lyft-reaches-deal-to-operate-car-hailing-service-in- new- york.html?module=Search&mabReward=relbias%3As%2C{%221%22%3A%22RI%3A8%22}&_r =0

“Lyft Service Is Launched After Changes” App-Driven Car Service Using Professional Drivers in New York City By Andrew Tangel, The Journal, July 25, 2014 9:20 p.m. ET http://online.wsj.com/articles/lyft-service-is-launched-after-changes-1406337610?mod=WSJ_hps_sections_tech

“Uber Attains Eye-Popping New Levels of Funding” By Michael J. De La Merced, The New York Times, June 6, 2014 http://dealbook.nytimes.com/2014/06/06/uber-raises-new-funds-at-17-billion- valuation/?contentCollection=business&action

“Uber Picks David Plouff to Wage Regulatory Fight” By Mike Isaac, The New York Times, August 20, 2014 http://www.nytimes.com/2014/08/20/technology/uber-picks-a-political-insider-to-wage-its- regulatory-battles.html?ref=business

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OCTOBER 22-29, 2014

WHEN DOES POLICY YIELD TO POLITICS AND WHOSE POLITICS WIN?

Breyer, Regulation and its Reform, Chapter 16: “From Candidate to Reform”, 317-340

“City Now Expects to Authorize More Green Cabs by Fall” By Matt Flegenheimer, The New York Times, May 16, 2014, http://www.nytimes.com/2014/05/17/nyregion/city-now-expects-to-authorize-more-green-cabs- by-the-fall.html?emc=eta1&_r=0

“Taxi Driver Solidarity: Pinched by Ride-Sharing Services, Cabbies Seek a National Union” By Steven Greenhouse The New York Times, JUNE 6, 2014 http://www.nytimes.com/2014/06/07/business/pinched-by-ride-sharing-services-cabbies-seek-a- national-union.html?ref=business&_r=0

“Car-Hailing Service, Lyft, Reaches Deal to Operate in New York City” By Matt Flegenheimer, The New York Times, JULY 25, 2014 http://www.nytimes.com/2014/07/26/nyregion/lyft-reaches-deal-to-operate-car-hailing-service-in- new- york.html?module=Search&mabReward=relbias%3As%2C{%221%22%3A%22RI%3A8%22}&_r =0

“Lyft Service Is Launched After Changes; App-Driven Car Service Using Professional Drivers in New York City” By Andrew Tangel, , July 25, 2014 9:20 p.m. ET http://online.wsj.com/articles/lyft-service-is-launched-after-changes-1406337610?mod=WSJ_hps_sections_tech

“Uber’s Travis Kalanick Explains His Pricing Experiment” By Neil Irwin, The New York Times http://www.nytimes.com/2014/07/12/upshot/ubers-travis-kalanick-explains-his-pricing- experiment.html?_r=0

“Uber’s Brilliant Strategy to Make Itself Too Big to Ban” By Marcus Wohlsen Wired, 07.08.14 ,6:30 am, Permalink http://www.wired.com/2014/07/ubers-brilliant-strategy-to-make-itself-too-big-to-ban/

“Uber’s Real Challenge: Leveraging the Network Effect” By Neil Irwin, The New York Times, JUNE 13, 2014 http://www.nytimes.com/2014/06/14/upshot/ubers-real-challenge-leveraging-the-network- effect.html

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NOVEMBER 5, 2013

WHAT ARE THE INCENTIVES AND MOTIVATIONS OF AGENCY OFFICIALS: ARE THEY DIFFERENT FROM LEGISLATORS?

Eckert, R.D. “On the incentives of regulators” The Case of Taxicab Public Choice, XIV (1973) http://www.jstor.org/betasearch?Query=Ross+D.+Eckert&fc=off&wc=on&si=20

P.J. O’Rourke Parliament of Whores, pp.36-37, 49-93

“Compensation and Staff Allowance”, Congressional Salaries and Allowances, Congressional Research Service, p. 1-3, http://library.clerk.house.gov/reference-files/112_20120104_Salary.pdf

“HealthCare.gov: How political fear was pitted against technical needs”,

By Amy Goldstein and Juliet Eilperin, , November 2, 2010 http://www.washingtonpost.com/politics/challenges-have-dogged-obamas-health-plan-since- 2010/2013/11/02/453fba42-426b-11e3-a624-41d661b0bb78_print.html

“Health official apologizes for Obamacare website flaws”

By Jason Millman and Jennifer Haberkorn, POLITICO, October 29, 2013 08:00 AM EST http://www.politico.com/story/2013/10/cms-chief-marilyn-tavenner-first-to-testify-on-obamacare- affordable-care-act-website-flaws-99004.html

“Notes Reveal Chaotic White House Talks on Health Care Site” By Robert Pear, The New York Times, November 5, 2013 http://www.nytimes.com/2013/11/06/us/politics/senator-cites-crisis-of-confidence-on-health- care-site.html?ref=us&_r=0

“Sebelius Apologizes for Health Site’s Malfunctions" By Robert Pear, The New York Times, October 30, 2013, http://www.nytimes.com/2013/10/31/us/politics/sebelius-apologizes-for-health-sites- malfunctions.html

NOVEMBER 12, 2014

PERSONS, POLICIES AND INCENTIVES

Harry Markopolos Testimony Before The U.S. House Of Representatives Committee On Financial Services, February 4, 2009, pp. 1-65 http://vk.com/doc32433198_170868322?hash=154092a6b2dcaa1dfd&dl=28aabb49a7217e1962

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“SEC Investigator Raised Madoff Concerns Years Ago, Was Asked to Look Elsewhere”By Zachary A. Goldfarb, The Washington Post, Thursday, July 2, 2009 http://www.washingtonpost.com/wp- dyn/content/article/2009/07/01/AR2009070104223.html?sub=AR

“The S.E.C. Watchdog Who Missed Madoff”, By Lorena Mongelli, New York Post, January 7, 2009, http://newyorkpost.com/2009/01/07/the-sec- watchdog-who-missed-madoff/

“Under New Chief, a Feistier S.E.C. Emerges” By Ben Protess and Michael J. De La Merced, The New York Times, July 19, 2013, 9:09 pm, http://dealbook.nytimes.com/2013/07/19/under-new-chief-a-feistier-s-e-c-emerges/

“The End of the Financial World as We Know It” By Michael Lewis and David Einhorn, , The New York Times, January 3, 2009 http://www.nytimes.com/2009/01/04/opinion/04lewiseinhorn.html?pagewanted=all&_r=0

“Street Cop” By Nicholas Lemann, The New Yorker, November 11, 2013 http://www.newyorker.com/reporting/2013/11/11/131111fa_fact_lemann

NOVEMBER 19, 2015

CAN YOU CONTROL CAPTURE? HOW MUCH DOES PARTICIPATION COUNT?

Eckert,R.D., 1981.” The Life Cycle of Regulatory Commissioners”. Journal of Law and Economics 24, 113-120. http://www.jstor.org/betasearch?Query=Ross+D.+Eckert&fc=off&wc=on&si=10

“Lobbying Bonanza as Firms Try to Influence European Union” By Eric Lipton and Danny Hakim, The New York Times, October 18, 2013, http://www.nytimes.com/2013/10/19/world/europe/lobbying-bonanza-as-firms-try-to-influence- european-union.html?_r=0

Brezis, E.S. and Weiss, A., “Conscientious regulation and post-regulatory employment restrictions”, European Journal of Political Economy, Vol.13 (1997) 517-536

“Corralling Capture’, David Freeman Engstrom, Harvard Journal of Law & Public Policy, Vol 36, no. 1 (2013), 31-39 http://www.harvard-jlpp.com/wp-content/uploads/2013/01/36_1_031_Engstrom.pdf

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DECEMBER 5,2014 HOW CAN YOU TELL WHAT WILL MOTIVATE PLAYERS IN A PARTICULAR SITUATION? HOW CAN YOU PREDICT OUTCOMES? How do you choose whether to intervene? How do you go about it if you do?

Richard H. Posner, “The Nirvana Fallacy Revisited”, Becker-Posner Blog, April 15, 2012 http://www3.nd.edu/~ndlaw/prog-law-economics/Posner-The-Nirvana-Fallacy-Revisited.pdf

S.P. Croley, The Possibility of GOOD Regulatory Government (2008), pp. 213-306

“Michael E. Levine, Jennifer L. Forrence, “Regulatory Capture, Public Interest, and the Public Agenda: Toward a Synthesis”, Journal of Law, Economics, & Organization, Vol. 6, Special Issue: [Papers from the Organization of Political Institutions Conference, April 1990] (1990), pp. 167-198 http://www.jstor.org/betasearch?Query=Levine+Forrence&ac=0&si=0&fc=off&wc=on

Croley, 301-303

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