Volume 36, Issue 1

Policy Essay

The Congressional Budget Office and the Demand for Pseudoscience

Arnold Kling

Politicians and journalists who participate in the policymaking process fail to appreciate the limitations of the analytical models used by the Congressional Budget Office (CBO). The demand for pseudoscience leads to unwise policy choices. Although the CBO is nonpartisan, the presentation of its model results serves to focus attention on scenarios that are favorable to intervention and to deficit spending. But the policy discussion does not include scenarios in which intervention fails to accomplish intended results or where economic shocks make a large government debt problematic. This Essay recommends ways for Congress to redirect the CBO, resulting in analysis and reporting that would provide better support for public policy.

Article

Cricket Soup: A Critical Examination of the Regulation of Insects as Food

Marie C. Boyd

Entomophagy—the practice of eating insects—has the potential to help meet the demand for human food and address food insecurities in an environmentally sustainable manner. The realization of the potential of insects as food, however, is not without its challenges. These challenges include the lack of regulation specifically addressing insects as food and the stigma towards the use of insects as food.

While the United States Food and Drug Administration (FDA) has devoted significant attention to insects as defects in human food, it has given comparatively little attention to insects as human food. The insect food industry in the United States, while still limited, is growing, as is the number of packaged foods offered for sale that intentionally incorporate insects. This Article critically examines FDA’s regulation of insects in the context of food, including its regulation of insects as defects, insect-derived products, and insects as food or a component of food. To date, FDA’s regulation of insects as food has been largely characterized by inaction. This Article argues that in light of the substantial law categorizing insects as “filth” under the Federal Food, Drug, and Cosmetic Act (FDCA) and FDA’s extensive regulation of insects as filth, this inaction is not neutral and FDA should affirmatively and unambiguously recognize that insects used as food are “food” under the FDCA. FDA should also develop a test to distinguish between insects as food and insects as filth and should consider using intent to distinguish between insects as food and insects as filth. This Article suggests that culturally, insects are not commonly considered food in the United States, in part because FDA has generally regulated insects as filth. By recognizing insects as food, FDA may help to facilitate greater cultural acceptance of the use of insects as food. 

Article

Bureaucratic Agency: Administering the Transformation of LGBT Rights

Marie-Amélie George

In the 1940s and 1950s, the administrative state served as a powerful engine of discrimination against homosexuals, with agency officials routinely implementing anti-gay policies that reinforced gays’ and lesbians’ subordinate social and legal status. By the mid-1980s, however, many bureaucrats had become incidental allies, subverting statutory bans on gay and lesbian foster and adoptive parenting and promoting gay-inclusive curricula in public schools. This Article asks how and why this shift happened, finding the answer not in legal doctrine or legislative enactments, but in scientific developments that influenced the decisions of social workers and other bureaucrats working in the administrative state. This phenomenon continues today, with educators resisting laws that limit transgender students’ bathroom access.

By uncovering this bureaucratic resistance, this Article demonstrates the administrative state’s dynamism and that bureaucracy can be an important site of legal change. Because bureaucrats are charged with enforcing legislation, their actions also have significant normative implications, raising separation of powers and democratic legitimacy concerns. However, the very structure of administrative bureaucracies creates conflict between the branches, as civil servants are hired for their professional knowledge and abilities, yet are also responsible for complying with legislative mandates that may contradict that expertise. This Article argues that bureaucratic resistance is inevitable, can be legitimate, and may be desirable. 

Article

Share, Own, Access

Shelly Kreiczer-Levy

Millennials are losing interest in ownership. They prefer to access property as needed on a casual, short-term basis. Prompted by the sharing economy, online platforms, and ethical consumerism, access presents a radical alternative to established property forms. This type of property use is popular among younger, technology-savvy generations. It prioritizes use, flexibility, and mobility over the control, stability, and attachment that are associated with traditional property forms. Despite its recent prominence, access has remained surprisingly undertheorized, especially from a property perspective. This Article fleshes out the normative values and the concerns ingrained in this emerging property form. In addition, it critically evaluates the legal and regulatory response to access. It argues that the law continues to steer users towards ownership or other forms of long-term possession, significantly limiting the option of access. Accordingly, it calls for reevaluating insurance, tax, zoning, and antidiscrimination laws. 

Note

Shifting the Scope: How Taking School Demographics Into Account in College Admissions Could Reduce K-12 Segregation Nationwide

Thomas Scott-Railton

Deepening racial and socioeconomic segregation is producing unequal educational outcomes at the K-12 level, outcomes that are then reproduced in higher education. This is particularly true as rising competition among colleges has led many of them to focus increasingly on measures of merit that correlate with income and as parents and students adjust their behavior in light of those metrics. While existing affirmative action programs at colleges provide some counterweight to this dynamic, they are limited by institutional (and constitutional) constraints. Out of concern for revenue and rankings, many colleges are constrained in the number of students from low-income backgrounds they are willing to admit. Such a limited scope is not inevitable, however.

If colleges were to give a substantial admissions bonus to applicants who had attended K-12 schools with at least a certain percentage of low-income students, higher education could become a force for countering inequality at the K-12 level, instead of reproducing it. College admissions policies serve as a crucial reference point for parents, students, and educators on down through K-12. By rewarding applicants for attending socioeconomically integrated schools, colleges would mobilize the resources of private actors across the country towards integration. The benefits of this would be significant, especially for students from low-income families who would have an increased chance of attending integrated K-12 schools as a result. Such a policy would also help colleges better foster diversity on campuses, as more students would have had prior experience in integrated settings.

This Note explores the ongoing problem of K-12 re-segregation, argues that by adopting this policy colleges could work to promote integration, examines how such a policy could best be designed to do so, and addresses why such a policy would be constitutional. At a time when educational inequality is on the rise, there is an urgent need for new affirmative action proposals that can combat segregation and do so within colleges’ existing constitutional and institutional constraints. The policy proposal advocated in this Note would do both, interrupting key elements of the present vicious circle.