The cp solves the aff and avoids politics --- the CPs pilot program avoids partisanship and spill-over to regularize policy pilots at the federal level and engender government accountability that spills-up

(Colleen V. Chien, Justin D'Atri Visiting Professor of Business Law, Columbia Law School; Professor, Santa Clara University School of Law; 2013-2015 White House Senior Advisor, Innovation and Intellectual Property, “Rigorous Policy Pilots: Experimentation in the Administration of the Law, July, 2019, “104 Iowa L. Rev. 2313,” pg lexis//um-ef)

In the government, fear of making a Type 1 or "false positive" error - taking a mistaken step - leads to an overabundance of Type 2 or "false negative" errors - failing to take a productive step. At root, however, is the problem of "what [the] government doesn't know," regarding what changes to law or policy to consider taking, what the impact of such changes might be, and which among several potential changes is most likely to achieve a policy goal, 11all topics about which there may be many opinions, but little relevant evidence. Uncertainty about whether a law or policy change will achieve its intended purpose, fear of making a mistake in the face of this uncertainty, and institutional inertia all contribute to status quo bias - whether in favor of preserving regulations that don't work or failing to adopt new policies that do. 12

One way to address both the knowledge gap and risk aversion in policy development is by introducing a temporary change to law or policy for the purpose of learning from it, through a "policy pilot." Implemented with rigor, through the application of, "well-designed and well-implemented methods tailored to the questions being asked" 13- rigorous policy pilots are a generative yet under-used tool for addressing informational deficits that stand in the way of developing effective law and policy.

The range of open questions in law and policy that can be addressed by pilots are wide-ranging. They include, for example, the question of how giving a universal basic income ("UBI") to individuals impacts their well-being and employment. In 2017, the Finnish government began tracking the outcomes of 7,000 unemployed citizens, about a third to which it gave $ 600 a month, [*2317] to address this question; 14several U.S. jurisdictions are planning their own tests. 15Also unknown is how the administration of patent law and issuance of quality patents best advance the Constitutional goal of "promoting the progress of science and useful arts." 16Over the last decade, the United States Patent and Trademark Office ("USPTO") has run numerous pilots to address this question. 17As the D.C. Circuit has said, "there are some situations in which, "a month of experience will be worth a year of hearings.'" 18While experiments or pilots can address a variety of questions pertaining, e.g., to a policy's feasibility or stakeholder reactions, when the question concerns whether the policy has caused an observed outcome, a controlled trial that provides the treatment to one part of population, withholds it from another, and then compares the difference in outcomes provides the best insight. Such rigorous experiments can be designed, in turn, with or without randomization, and to vary the rules or laws that apply or to approximate such changes. A pilot that limits to whom a rule or policy applies constrains the risk but not the learning. As Justice Brandeis famously dissented, "a single courageous state may ... serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." 19

Within today's highly partisan political landscape, the need for quality evidence about the performance of law and policy presents a rare opportunity for agreement, on the methods if not the values or agendas advanced by evidence. Calls for "smarter use of data and evidence ... to orient decisions and accountability around service and results" 20and "an aggressive management agenda ... that delivers smarter, more innovative, and more accountable government for citizens ... . by applying ... evidence about what [*2318] works" 21have appeared in President Trump's and President Obama's management agendas, respectively. The passage of the Foundations for Evidence-Based Policy Making Act of 2018 ("2018 Evidence Act"), besides showing that Democrats and Republicans actually can agree on something, will consolidate and coordinate statistical expertise for assessment among rank and file bureaucrats across the federal government. 22

But while "adequate and well controlled studies" have long been required in certain contexts, 23experiments with laws and rules have a history of being constitutionally and legally suspect. As the Supreme Court stated in Truax v. Corrigan, "the Constitution was intended - its very purpose was - to prevent experimentation with the fundamental rights of the individual." 24

Rigorous pilots that provide a benefit to some, but not other, members of a population would appear to offend basic notions of equal protection. 25Imposing a regulatory burden on a subset of regulated entities likewise sounds in unfairness and risks running afoul of the Constitution's due process guarantees. Applying a rule randomly to one set of entities but not another would appear to some to present just the kind of "arbitrary, capricious" agency action judicial review was designed to set aside. 26

How rigorous testing can support evolution of the law is also not widely understood. By operating within existing legal frameworks, experiments can obscure more salient questions, including whether or not the framework is the right one in the first place. Rigorous experimentation is less flexible and adaptable than "democratic experimentalism" with which it shares some features. 27While Congress may feel empowered to take bolder steps when laws are framed as reversible and temporary, requirements of rigor can constrain agencies, feeding anti-regulatory impulses. Experimental evidence can be weaponized and politicized in the same way non-experimental evidence can. 28

[*2319] And yet, when compared to doing nothing or engaging in unreflective action, the benefits of rigorous experimentation become clearer: Rigorous pilots can prime legislative and policy-making efforts by underscoring the importance of evidence and prompting a discussion about the metrics that matter. Rigorous pilots can be used to test legal theories, and point out legal infirmities, provided that is the motivation. Further, among information sources, rigorous pilots are distinct in their ability to generate experiential feedback on the operation of law and policy.

But while rigorous policy pilots can thus be powerful tools, so far, they have been underused tools for informing the development of law and policy. In part this is due to a perception that certain types of rigorous pilots are possibly illegal. Citing a litany of difficulties, a recent recommendation of the Administrative Conference of the United States 29concluded that, "legal, policy, and ethical challenges ... may mean that regulatory agencies should use randomized study methods only under limited circumstances." 30But rigorous pilots have also been underused because of practical obstacles to designing and carrying them out, and a lack of awareness of the value they can add.

This Essay attempts to chip away at perceived legal, institutional, and informational barriers to the use of rigorous policy pilots. While informed by the growing academic interest in experiments, 31it primarily draws upon perhaps the single most credible source for addressing the legality, importance, and mechanics of structured pilots by the federal government: the federal government itself. Based upon caselaw, legislative, and agency accounts of government experimentation, it finds that from being illegal, hard, and rare, rigorous government pilots are presumptively legal, feasible, increasingly common, and in many cases, worthwhile, and proposes a framework for proposing rigorous policy pilots based on these experiences. A companion online appendix, using the patent system as a case study, applies [*2320] this framework to suggest rigorous policy pilots that the USPTO could implement to support patent law-and policy-making