Professor William Araiza’s Rebuilding Expertise Inspires Scholarly Examination of Regulation, Science, and Politics
Stanley A. August Professor of Law Professor William Araiza’s new book, Rebuilding Expertise (NYU Press, June 2022), which examines how U.S. government regulators might regain public trust at a time of elevated skepticism, drew a panel of scholars to Brooklyn Law School on March 21 for a lively Book Talk discussion on the roles that science, politics, and industry play in government regulation.
Araiza was joined by other experts in administrative law, including Peter M. Shane, the Jacob E. Davis and Jacob E. Davis II Chair in Law at Ohio State University Moritz College of Law and a Distinguished Scholar in Residence at NYU Law; Sidney Shapiro, the Frank U. Fletcher Chair in Administrative Law, and Professor of Law at Wake Forest University School of Law; and Wendy E. Wagner, the Richard Dale Endowed Chair in Law at the University of Texas at Austin School of Law.
To launch the discussion, Araiza explained that regulatory expertise requires a combination of “knowledge” and “expertise in performing regulation,” and that the book's focus is on how rebuilding expertise is about “creating not just effective regulation, but trustworthy regulation.” Yet the work of government regulatory experts is subject to politics and the will of elected officials.
“Regulation is, after all, the implementation of political choices,” Araiza said. “It would be a very impoverished and unrealistic understanding of regulation to pretend that it can be a purely technocratic exercise. Politics has got to be part of the mix.”
One of the tensions of the book is that over the past five decades, politics has become a dominant part of the mix, prompting citizens to increasingly challenge the trustworthiness of government agencies, Araiza said. This imbalance began, he argued, with President Ronald Reagan in 1980, when Reagan challenged the role of regulation in American society and prompted citizens to question the motives and abilities of government workers. One of that era’s quotes, famously attributed to Reagan, encapsulates the suspicion: “The nine most terrifying words in the English language are ‘I'm from the government and I'm here to help.’”
This depiction of government ineptitude becomes problematic when the government faces sweeping challenges such as COVID-19 or even normal day-to-day crises. “In a time of pandemics and climate change and artificial intelligence breakthroughs, big emerging issues that demand expert regulation…all of those challenges make it surely dangerous for Americans to distrust the people who are charged with making things better,” Araiza said. “It makes it really dangerous for Americans to distrust their regulators.”
The book’s goal is to help strike a balance between regulatory expertise and politics. “With any kind of luck, that balance can be found,” Araiza said. He quoted an opinion written by Supreme Court Chief Justice John Roberts in Free Enterprise Fund v Public Company Accounting Oversight Board (2010): “One can have a government that functions without being ruled by functionaries, a government that benefits from expertise without being ruled by experts.” To this, Araiza added that it is also possible to have "a government that, by virtue of its expertise, when combined with its political accountability, truly becomes legitimate and therefore truly becomes trustworthy.”
Scholars Applaud and Weigh in on Rebuilding Expertise’s Goals
Araiza’s peers on the panel called Rebuilding Expertise an important book, with a unique perspective and valuable ideas that could be deployed to improve trust in government regulators.
Wagner said Araiza’s mapping of the regulatory landscape was eye-opening to her, as a 30-year scholar in the space, and that the book shines a light on the “black box world” of government regulation, and how the “administrative state” uses science.
“He gives a bird's-eye view of what I would call a veritable obstacle course of insults and impediments to the agency use of science so that, when you connect the dots, you see a world you didn't know existed,” Wagner said. “It shows us that asking the agencies to try to fix themselves and do something about these problems and this declining public trust in expertise is not going to cut it. Instead, the problem is how we have designed our institutions.”
The book, Wagner said, correctly points to one key culprit—Reagan’s creation of the Office of Information and Regulatory Affairs (OIRA), which allows the White House to intercede in agency business in ways that are “hidden.” Reagan also expanded the number of political appointees in leadership positions in federal government agencies, officials who could and, according to whistleblowers, have changed numbers and analyses for political purposes. Beyond that, industry players, lobbyists, and the government contractors that work for agencies because of downsizing hold increased sway over federal regulations, Wagner said.
For agencies that involve regulations based on scientific expertise, Wagner suggested they take a cue from the standards of the scientific community, where research is published in “journals with rigorous peer review and authorship requirements where they certify that they're the author,” and where any conflicts of interest are declared. “What about imposing some of those benchmarks in agency science, none of which are there now?” Wagner asked.
Shapiro pointed out Araiza’s deftness in simplifying the difficult topic of administrative law, saying he helps readers grasp how the multiple moving parts, including Congress, the courts, experts, the president, constitutional law, and administrative law work with and relate to each other.
“The book identifies expertise as the engine that makes administrative law possible, and it discusses the multiple parts of government that impact that expertise,” Shapiro said. “Then, the book comes to the heart of the matter: the ways in which each of these influences alone and together, have deteriorated the expertise the government needs to work.”
Americans need to be reminded “what government is and what it does,” and how it can both restrict people’s “freedom and liberty” but also restore it when markets try to take it away, Shapiro said.
Shane, whose remarks focused on the politics surrounding civil service, said he agreed with Araiza’s assertion that politics has too large a role in regulatory matters.
“The least glamorous trait of good governance is balance. It also is the most important, and Bill makes a persuasive argument that we need some restoration.”
He said that balance could come from the legislative branch.
“Conventional wisdom in the 1970s deemed it within Congress's purview not only to assign broad tasks to agencies, but also to calibrate the president's relationship to those agencies, including, for example, by providing statutory protection of a limited sort to agency heads,” Shane said.
Another idea, in line with Araiza’s book: “Require any policy-relevant activity conducted by private contractors to be reviewed by expert agency personnel,” Shane said.
During the question-and-answer session, panelists discussed a variety of challenges, including the role of citizen input and gathering their experiences without falling into the trap of undermining the actual experts; how to lessen the influence of industry on government agencies; and how the political leanings of government agency employees impact their work.
One heartening comment came after an audience member asked if there were countries that are models of good regulation.
“Yes — the United States,” Shapiro said. “Compare the air to what it was in the 1960s, compare the water, compare the number of workers who died in the workplace, compare the safety of the railroads. When there’s space to do regulation well, as [Professor Araiza’s] book advocates, we can do regulation very well.”
Araiza's book has also been the subject of an online symposium in the Yale Journal on Regulation.