Obligation Alleviation During the COVID-19 Crisis

Cary Coglianese

Within about one month from the day in March when the World Health Organization declared the coronavirus outbreak a global pandemic, about 95 percent of the U.S. public has come under what would normally be seen as draconian regulatory obligations: “stay at home,” “close up your business,” “stay off of the beach,” “wear a face mask.”

Although such obligations would be unfathomable during normal times, remarkably, hundreds of millions of Americans have accepted them and appear largely to be complying with their terms—all within the span of a few weeks’ time. Yet as the nation’s economy spirals out of control, with more than 20 million Americans having lost their jobs over the last month, the key regulatory question now seems to be: When will the economy “re-open”?

This is a question of what I call “obligation alleviation.” The lifting or alleviating of obligations is a key decision all regulators face, which may seem surprising because the word “regulation” connotes the imposition of obligations. But as may be clearer in times of emergency, the practice of regulating also involves deciding when, how, and for whom to alleviate obligations.

Obligation alleviation comes in several different varieties. Sometimes it takes the form of repealing rules wholesale—or what is typically referred to as deregulation. That is what most people have in mind when they ask when the economy will re-open.

Other types of obligation alleviation take the form of what Daniel WaltersGabriel Scheffler, and I call “unrules.”

In a forthcoming article in the Stanford Law Review, we explain how unrules are the opposite of rules. Instead of imposing obligations, unrules allow regulators to ensure that certain actors can avoid otherwise applicable obligations—but without completely removing the rules, as with deregulation. Unrules can be baked into rules themselves—what we call “carveouts.” Or they can take place after a rule is on the books—through case-specific or firm-specific “dispensations” that waive otherwise applicable obligations without repealing a regulation.

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