The Information Power and Its Discontents with Nathan Cortez
Event Description
This event is in-person (with lunch) for CWRU students, faculty, and staff and virtual for everyone else.
Abstract: The federal executive wields vast power to determine what official information reaches the public. The public, in turn, relies on this information to conduct research, do business, and make countless health, economic, and personal decisions. Moreover, this information forms the basis for a shared public reality that makes self-governance possible. From census surveys and food safety alerts to economic indicators, crime statistics, and climate conditions, official data establish the evidentiary record for society. Agencies enjoy significant discretion regarding what official information to publish, and even how, when, and whether to publish in the first instance. Call this the “information power.” Although there is a loose assemblage of statutes, executive directives, and internal agency rules that govern some of these decisions, most are discretionary. Courts, Congress, scholars, and even agencies themselves are not quite sure what to do about them. The decisions may seem ministerial but really reflect a deeper “information policy” that is imbued with value judgments and normative priorities.
This Article makes three principal contributions. First, it describes the “information power” as a form of executive authority distinct from rulemaking, adjudication, and enforcement, encompassing agency decisions to collect, create, preserve, organize, interpret, disseminate, and alter official information.
Second, it identifies the assorted statutes, directives, and internal rules that apply as “information policy,” and demonstrates how the legal architecture has not kept pace with the sprawling informational architecture it purports to govern. In the process, it documents how information policy has evolved under recent administrations and how the power has been abused, including efforts to delete websites and data sets, scrub terminology and topics deemed verboten, and even reduce agency capacity to collect and disseminate information. Finally, it confronts the challenge of how to constrain abuses without preventing agencies from deciding how best to alert and inform the public. The principles familiar elsewhere in administrative law-such as reasoned decision-making and boundaries on discretion-should not evaporate simply because agencies wield power through information and not through traditional devices. At the same time, the distinctive nature of the information power requires distinctive considerations, including the unique nature of official information and how clearly the government should distinguish official fact from opinion. Thus, the Article offers principles for checking abuses of the information power without pretending that the law can compel the executive to produce objectively “true” information. The proper lodestar should be public trust, not objective truth. This does not imply that truth is irrelevant or that agencies should be free to mislead; rather, it means the law is poorly equipped to adjudicate the truth of every agency communication, and information policy should instead protect the conditions that make federal information worthy of trust, including commitments to transparency, procedure, methodological integrity, and accountability.
The executive’s information power may be inevitable. But its concentration is not. The task for law is to preserve the government’s extraordinary capacity to produce authoritative information while preventing any administration from becoming its sole and unaccountable arbiter.
Speaker’s Bio:
Professor Cortez, the Co-Director of the Tsai Center for Law, Science and Innovation, and the inaugural Adelfa Botello Callejo Endowed Professor of Law in Leadership and Latino Studies, teaches and writes in the areas of health law, administrative law, and FDA law. His research focuses on emerging markets in health care and biotechnology. Prof. Cortez has become one of the world’s leading legal scholars on medical tourism and other cross-border health markets and has published several articles and book chapters on the legal and ethical implications of these phenomena. His research also addresses mobile health technologies and big data analytics, how to regulate innovation under aging regulatory frameworks, the First Amendment constraints on FDA regulation, immigration federalism, and alternative modes of regulation. Professor Cortez has presented his research around the world, including to professional societies, at industry conferences, to regulators, and at several universities, including Colorado, Harvard, North Carolina, the University of Paris, Radboud University (Netherlands), Stanford, Texas, Wisconsin, and Yale. He also provides frequent commentary to the media, including the Associated Press, Chicago Tribune, CNN, the Huffington Post, the Los Angeles Times, the New York Times, NPR, WIRED, and Slate.com.
Professor Cortez has co-founded the Texas Legal Scholars Workshop and the SMU Food Law Forum. He has been a peer reviewer for some of the best legal and medical publications in the world, including Health Affairs, The Lancet, The
New England Journal of Medicine, the Oxford and Cambridge University Presses, and the Yale Law Journal. He has been a consultant for the Administrative Conference of the United States (ACUS), is a member of SMU's Center for Global Health Impact and is a mentor to health care technology start-ups for the incubator Health Wildcatters.
Before joining the SMU faculty, Professor Cortez practiced with the Washington D.C. law firm Arnold & Porter, as part of its pharmaceutical, health care, and biotech practice. He represented clients in health care regulatory matters, with a special emphasis on health care fraud and abuse, FDA enforcement, privacy, and the Medicare and Medicaid programs. He represented clients during litigation, in corporate transactions, during agency enforcement actions, and during congressional investigations and hearings. While at Arnold & Porter, Professor Cortez litigated pro bono cases with the Mexican American Legal Defense and Educational Fund (MALDEF) and was a Board Member of the D.C. Hispanic Bar Foundation. In 2006, he was a Visiting Assistant Professor at Rutgers-Camden Law School.
Event Location
Moot Courtroom (students only) and Virtual (all others)
Nathan Cortez
Callejo Endowed Professor of Law
SMU Dedman School of Law