Administrative Procedures and Bureaucratic Performance: Is Federal Rulemaking ‘Ossified’?

“Administrative Procedures and Bureaucratic Performance: Is Federal Rulemaking ‘Ossified’?”

Univ. of Wisconsin Legal Studies Research Paper No. 1079

JASON W. YACKEE, University of Wisconsin Law School
SUSAN WEBB YACKEE, affiliation not provided to SSRN

We provide the first empirical assessment of the ossification thesis, the widely accepted notion that procedural constraints on federal agencies have greatly hindered the ability of those agencies to formulate policy through notice and comment rulemaking. Using data that covers all active federal rule-writing agencies from 1983 to 2006, our results largely disconfirm the ossification thesis. Agencies appear readily able to issue a sizeable number of rules, and to do so relatively quickly. Indeed, our empirical results suggest that procedural constraints may actually speed up the promulgation of rules, though our model suggests that this positive effect may decline, or even reverse, as proposed rules age. We conclude that procedural constraints do not appear to unduly interfere with the ability of federal agencies to act, or in most cases, to act in a timely manner.

 

Source: LSN Experimental & Empirical Studies Vol. 10 No. 28,  04/24/2009