Dorit Rubinstein Reiss

Agency Accountability Strategies after Liberalization: Universal Service in the United Kingdom, France, and Sweden

Liberalization of key network industries is often said to reduce accountability by undermining its traditional mechanisms. Liberalization, others say, promotes accountability by creating new channels and mechanisms. This article suggests that neither view is sufficiently nuanced. Accountability comes in many forms, and the question is less “how much” accountability there is, but what form it takes. And accountability will take different forms in relation to different issues, even within the same organization. Examining accountability in relation to the provision of universal service in electricity and telecommunications, this article demonstrates that in the regimes studied, agencies were generally accountable for providing universal service by deferring, to the maximum possible extent, to political actors or stakeholders. However, when faced with an expert technical question—in this case, determining the costs of the universal service—agencies stressed their professional judgment and transparency. This observation supports a wider hypothesis concerning the conditions under which a variety of agency accountability strategies may be adopted.

The Benefits of Capture

Observers of the administrative state warn against “capture” of administrative agencies and lament its disastrous effects. This article suggests that the term “capture”, applied to a close relationship between industry and regulator, is not useful – by stigmatizing that relationship, judging it as problematic from the start, it hides its potential benefits. The literature on “capture” highlights its negative results – lax enforcement of regulation; weak regulations; illicit benefits going to industry. However, this picture is incomplete and in substantial tension with another current strand of literature which encourages collaboration between industry and regulator. The collaboration literature draws on the fact that industry input into the regulatory process has important benefits for the regulatory state. Industry usually has information no one else has, and has more incentive to give that information to a friendly regulator. Furthermore, working with industry can substantially improve the impact of regulation; voluntary compliance is cheaper and can be more effective than enforced compliance, and industry can help regulators minimize negative unintended consequences. This paper suggests that instead of engaging in name-calling, we should focus on identifying when a close industry-regulator relationship will work in the public interest, and when it is likely to undermine it. That is an empirical question.

Funding the Costs of Disease Outbreaks Caused by Non-vaccination

While vaccination rates in the United States are high - generally over 90 percent - rates of exemptions have been going up, and preventable diseases coming back. Aside from their human cost and the financial cost of treatment imposed on those who become ill, outbreaks impose financial costs on an already burdened public health system, diverting resources from other areas. This article examines the financial costs of non-vaccination, showing how high they can be and what they include. It makes a case for requiring those who do not vaccinate to cover the costs of outbreak caused by their choice. Such recouping is justified because the choice not to vaccinate can easily be seen as negligent. But even if it is not, that choice involves imposing costs on others, and there are good reasons to require the actors to internalize those costs. The article proposes alternative statutory and regulatory schemes to cover the costs imposed on the public purse, focusing on no-fault mechanisms. We consider both ex ante mechanisms like a tax or a fee that will go into a no-fault fund to cover the costs and ex post mechanisms like a statutory authorization for recoupment of those costs by health officials.

Ensuring Compliance From 35,000 Feet Accountability and Trade-Offs in Aviation Safety Regulatory Networks

A puzzle that faces public administrators within regulatory networks is how to balance the need for public or democratic accountability with increasing demands from interest groups and elected officials to utilize the expertise of the private sector in developing process-oriented programs that ensure compliance. This article builds upon the network governance accountability framework developed by Koliba, Mills, and Zia to explore the dominant accountability frames and the accountability trade-offs that shape the process-oriented regulatory regime used by the Federal Aviation Administration (FAA) to oversee and regulate air carriers in the United States.

Influenza Mandates and Religious Accommodation: Avoiding Legal Pitfalls

Influenza mandates in health care institutions are recommended by professional associations as an effective way to prevent the contraction of influenza by patients from health care workers. Health care institutions with such mandates must operate within civil rights frameworks. A recent set of cases against health care institutions with influenza mandates reveals the liabilities posed by federal law that protects employees from religious discrimination. This article examines this legal framework and draws important lessons from this litigation for health care institutions. We argue counterintuitively that providing religious exemptions from influenza mandates may expose health care institutions to more liability than not providing a formal exemption.

Legal Approaches to Promoting Parental Compliance with Childhood Immunization Recommendations

ABSTRACT Rates of vaccine-preventable diseases have increased in the United States in recent years, largely due to parental refusals of recommended childhood immunizations. Empirical studies have demonstrated a relationship between nonvaccination rates and permissive state vaccine exemption policies, indicating that legal reforms may promote higher immunization rates. This article reviews relevant data and considers the legal landscape. It analyzes federal and state Constitutional law, concluding that religious and personal belief exemptions to school-entry vaccine mandates are not constitutionally required. It identifies public health, bioethical, and policy considerations relevant to the choice among legal approaches employed by states to promote parental compliance. The article describes a range of legal tools that may help promote parental cooperation with immunization recommendations.

Rights of the Unvaccinated Child

Abstract Much of the discussion surrounding the antivaccine movement focuses on the decision of parents to not vaccinate their children and the resulting danger posed to others. However, the primary risk is borne by the child left unvaccinated. Although living in a developed country with high vaccination rates provides a certain amount of protection through population immunity, the unvaccinated child is still exposed to a considerably greater risk of preventable diseases than one who is vaccinated. I explore the tension between parental choice and the child’s right to be free of preventable diseases. The chapter’s goal is twofold: to advocate for moving from a dyadic framework – considering the interests of the parents against those of the state – to a triadic one, in which the interests of the child are given as much weight as those of the parent and the state; and to discuss which protections are available, and how they can be improved. Specific legal tools available to protect that child are examined, including tort liability of the parents to the child, whether and to what degree criminal law has a role, under what circumstances parental choice should be overridden, and the role of school immunization requirements in protecting the individual child.

CDC’s new rule to track and quarantine travellers

On 21 March 2017, the Final Rule for Control of Communicable Diseases became effective. The Rule codifies the Centers for Disease Control and Prevention’s (CDC’s) authority to apprehend, isolate and quarantine a person (regardless of citizenship or nationality) arriving into the US from foreign countries or travelling between US states or territories, who is suspected of being infected, or at risk of being infected, with one of the nine diseases on the US quarantine list (cholera, plague, diphtheria, small pox, yellow fever, infectious tuberculosis, viral haemorrhagic fevers (like Ebola), severe acute respiratory syndrome (SARS) and influenza) that can cause a pandemic. The Rule also strengthens federal surveillance of travellers for symptoms of non-quarantinable diseases like measles, pertussis and meningococcal disease. While proponents praise that the Rule enables the CDC to better respond to outbreaks and other public health threats associated with travel, critics have been arguing since the CDC first published the Notice of Proposed Rule Making (NPRM) in August 2016 that it is an example of government overreach which poses a risk to civil liberties.

The role of trust in the regulation of complex and high-risk industries: the case of the U.S. Federal Aviation Administration’s voluntary disclosure programs

As part of the shift from command and control to process oriented regulatory regimes (Gilad 2010), building trust between regulators and the regulated firms has grown in importance. Collaborative mechanisms often rely on a free-flow of information and communication, which requires the building and maintenance of trust. This exchange of information and trust building is even more vital in complex and high-risk industries where potential information asymmetries and prevailing motivations could lend themselves to the hiding of information (Gormley 1986; May 2005). In this paper, we examine the evolution of the role of trust in the U.S. Federal Aviation Administration’s Voluntary Disclosure Programs by developing case studies of three voluntary disclosure programs: the Aviation Safety Reporting System (ASRS), the Aviation Safety Action Program (ASAP) and the Voluntary Disclosure Reporting Program (VDRP). Using extensive interview and observational data, we demonstrate how trust is essential to the operation of the problems. We show how the FAA used institutional mechanisms to create trust at the national level, but at the local level, personal relationships had to be built to foster trust. The need for relationship-based trust building meant that the level of trust between the FAA and air carriers varied across regions and was often contingent upon the enforcement style of the regulator. While trust is necessary for the programs we describe and can provide substantial benefits to the public, it can also lead regulators to ignore warning signs and miss problems. We explore this darker side of trust using the Southwest Airlines incident.