My Thoughts via Jotwell on Dynamic Rulemaking (AdLaw Bridge Series)

by Chris Walker — Wednesday, Oct. 25, 2017@chris_j_walker

jotwellOver at Jotwell last month, I reviewed a terrific new article by Wendy WagnerWilliam WestThomas McGarity, and Lisa Peters entitled Dynamic Rulemaking. It was published in the NYU Law Review earlier this year.

Here’s a taste of the review:

Despite bipartisan calls for more-rigorous retrospective review, we have little empirical insight into how agencies review regulations today. Enter a groundbreaking new study by Wendy WagnerWilliam WestThomas McGarity, and Lisa Peters.1 In Dynamic Rulemaking, which was published in the NYU Law Review, the authors present the findings of their study of the rulemaking process with respect to four programs at three agencies: the Environmental Protection Agency (EPA), the Federal Communications Commission (FCC), and the Occupational Safety and Health Administration (OSHA). In total, they analyze 183 parent rules and all 462 revisions of those rules since the 1970s. This article is a must-read for those of us interested in agency rulemaking.

The study’s headline is that the agencies revised nearly three-fourths of original rules at least once (73%), if not multiple times. Indeed, revised rules (462 rules) outnumbered parent rules (183 rules) by a factor of 2.5. In other words, for decades the EPA, FCC, and OSHA have been involved in substantial retrospective review of existing rules. Or, as the authors put it, “[t]he rich revision activity reveals a vibrant ‘culture’ of dynamic rulemaking that occurs without formal commands or directives, even in settings where those formal requirements are in place.” (P. 217.)

And here is the summary of the paper from the abstract:

In administrative law, it is generally assumed that once an agency promulgates a final rule, its work on that project — provided the rule is not litigated — has come to an end. In order to ensure that these static rules adjust to the times, therefore, both Congress and the White House have imposed a growing number of formal requirements on agencies to “look back” at their rules and revise or repeal ones that are ineffective.

Our empirical study of the rulemaking process in three agencies (N = 462 revised rules to 183 parent rules) reveals that — contrary to conventional wisdom — agencies face a variety of incentives to revise and update their rules outside of such formal requirements. Not the least of these is pressure from those groups that are affected by their regulations. There is in fact a vibrant world of informal rule revision that occurs voluntarily and through a variety of techniques. We label this phenomenon “dynamic rulemaking.” In this Article, we share our empirical findings, provide a conceptual map of this unexplored world of rule revisions, and offer some preliminary thoughts about the normative implications of dynamic rulemaking for regulatory reform.

My full review is here, and the article is here.

 


This post is part of the Administrative Law Bridge Series, which highlights terrific scholarship in administrative law and regulation to help bridge the gap between theory and practice in the regulatory state. The Series is further explained here, and all posts in the Series can be found here.

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About Chris Walker

Christopher Walker is a law professor at The Ohio State University Moritz College of Law. Prior to joining the law faculty, Professor Walker clerked for Justice Anthony Kennedy of the U.S. Supreme Court and worked on the Civil Appellate Staff at the U.S. Department of Justice. His publications have appeared in the Michigan Law Review, Minnesota Law Review, Stanford Law Review, and University of Pennsylvania Law Review, among others. Outside the law school, he serves as one of forty Public Members of the Administrative Conference of the United States and on the Governing Council for the American Bar Association’s Section on Administrative Law and Regulatory Practice. He blogs regularly at the Yale Journal on Regulation.

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