Restoring Internet Freedom as an example of How to Regulate

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By: Jerry Ellig

June 03, 2019

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Thomas Lambert’s How to Regulate contains some simple but critical pieces of advice for regulators: (1) Diagnose the problem before settling on a solution, (2) Compare the merits (benefits and costs) of alternatives, and (3) Recognize that regulators, like the rest of us, respond to the incentives created by the organization in which they are embedded. The FCC’s Restoring Internet Freedom order presents an example of how to apply those principles in practice. The 2017 order’s decisions on blocking and throttling, paid prioritization, and the general conduct rule are informed by an extensive diagnosis of the problems the regulations are intended to solve and an assessment of the merits of alternative solutions. The decision to reclassify broadband from Title II to Title I takes into account the public choice incentives that could lead regulators to behave in a less-than-optimal way. 

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Research Professors Bridget Dooling and Jerry Ellig were invited to contribute articles to a symposium on Prof. Thomas Lambert's recent book, How to Regulate.  Lambert is the Wall Chair in Corporate Law and Governance at the University of Missouri School of Law. The symposium will be published in the University of Missouri Business, Entrepreneurship & Tax Law Review. A draft of Prof. Dooling's article can be accessed here: Expanding OIRA Review to IRS.