private and public regulation + risk + essay

September 3, 2013 66 Stan. L. Rev. Online 55 Legal debates over the “big data” revolution currently focus on the risks of inclusion: the privacy and civil liberties consequences of being swept up in big data’s net. This Essay takes a different approach, focusing on the risks of exclusion: the threats big data poses to those whom it overlooks. Billions of people worldwide remain on big data’s periphery. Their information is not regularly collected or analyzed, because they do not routinely engage in activities that big data is designed to capture. Consequently, their preferences and needs risk being routinely ignored when governments and private industry use big data and advanced analytics to shape public policy and the marketplace. Because big data poses a unique threat to equality, not just privacy, this Essay argues that a new “data antisubordination” doctrine may be needed. * * * The big data revolution has arrived. Every day, a new book or blog post, op-ed or white paper surfaces casting big data,[1] for better or worse, as groundbreaking, transformational, and “disruptive.” Big data, we are told, is reshaping countless aspects of modern life, from medicine to commerce to national security. It may even change humanity’s conception of existence: in the future, “we will no longer regard our world as a string of happenings that we explain as natural or social phenomena, but as a universe comprised essentially of information.”[2] This revolution has its dissidents. Critics worry the world’s increasing “datafication” ignores or even smothers the unquantifiable, immeasurable, ineffable parts of human experience.[3] They warn of big data’s other dark sides, too: potential government abuses of civil liberties, erosion of long-held privacy norms, and even environmental damage (the “server farms” used to process big data consume huge amounts of energy). Legal debates over.
The magnitude of the current financial crisis reflects the failure of an economic and regulatory philosophy that proved increasingly influential in policy circles during the past three decades. This philosophy, guided more by theory than historical experience, held that private financial institutions not insured by the government could be largely trusted to manage their own risks—to regulate themselves. The crisis has suggested otherwise, particularly since several of the least regulated parts of the system (including non-bank mortgage originators and the major broker-dealer Bear Stearns) were among the first to run into trouble. Former Federal Reserve Chairman Alan Greenspan acknowledged in October 2008, “Those of us who have looked to the self-interest of lending institutions to protect shareholders’ equity, myself included, are in a state of shocked disbelief.” From Crisis to Calm  Of course, financial panics and crises are nothing new. For most of the nation’s history, they represented a regular and often debilitating feature of American life. Until the Great Depression, major crises struck about every 15 to 20 years—in 1792, 1797, 1819, 1837, 1857, 1873, 1893, 1907, and 1929-33.  But then the crises stopped. In fact, the United States did not suffer another major banking crisis for just about 50 years—by far the longest such stretch in the nation’s history. Although there were many reasons for this, it is difficult to ignore the federal government’s active role in managing financial risk. This role began to take shape in 1933 with passage of the Glass-Steagall Act, which introduced federal deposit insurance, significantly expanded federal bank supervision, and required the separation of commercial from investment banking. The simple truth is that New Deal financial regulation worked. In fact, it worked remarkably well. Banking crises essentially disappeared after.
Download PDF Hannah J. Wiseman* Abstract: Recent domestic growth in oil and gas natural gas production from shales and sandstones called “tight” formations—largely enabled by a modified technology called slickwater hydraulic fracturing—has driven both economic growth and environmental concerns. Public concerns have often focused on the chemicals used in the fracturing process, yet federal regulations requiring disclosure of chemicals are weak. In the midst of initial “threats” of federal intervention, industry—along with state regulators—developed a website that enabled chemical disclosure. State regulations later mandated disclosure through this website, or allowed it as one option within a mandatory disclosure regime. Independently, gas companies also have begun to experiment with less toxic fracturing chemicals and to take other substantive efforts toward identifying and limiting the risks of tight oil and gas development. This example of a public-private effort to enhance informational access in fracturing, and to make limited substantive changes, may offer important lessons for other oil and gas regulation moving forward. Agencies and policymakers must make independent assessments of risks and avoid directly adopting industry solutions if those solutions are incomplete or avoid needed change. But oil and gas operators have shown how public action, combined with industry coordination and innovation, can sometimes inspire productive responses to the risks of unconventional oil and gas production. Introduction As 2012 drew to a close, the International Energy Agency declared that the United States had experienced a “renaissance” in energy.[1] Indeed, while we have long relied on imports to fulfill many of our energy needs, recent expansions of drilling and hydraulic fracturing technologies have opened up large reserves of oil and gas in shales and other “tight,”.
It is the policy of this commission to encourage settlements. — Multiple sources Settlements seem somehow to reach the lowest common denominator in many instances, and often end up defying the public interest.  They are often used to tie commissioners' hands, not to help them resolve vexing problems. — Former state commission chair *   *   * State commissions are seeing more filings: rate cases, requests for pre approvals, corporate restructurings.  Commissions also are instigating proceedings themselves: carbon reduction options, transmission construction, and renewable energy.  Staff sizes are dropping due to retirements and hiring freezes.  The resulting workload-resource squeeze makes settlements attractive as work reducers.  But settlements are double edged swords:  They have positive value if they solve public-interest challenges, negative value if they edge the commission out of its statutory role.  This distinction is not always easy to discern. Is settlement a misnomer?  First, a clarification of terms.  A regulated utility may conduct no commerce—provide no service, charge no rates—absent commission approval based on filed documents.  This filed rate doctrine distinguishes utility regulation from ordinary commerce.  In regulation, a settlement settles nothing substantive; it is only the parties' proposal. Benefits of Settlements Informality:  Settlement processes involve informal exchange.  Informal exchange enhances understanding of each entity's technical problems and private goals.  Both effects spiral upwards.  As technical fluency grows, commissions defer to the parties' solutions, encouraging more informal exchange, more technical understanding, and more commission deference.   Mutual exposure to parties' private goals spurs settlement solutions that align private interest with public interest—if the commission has established public-interest.