“Optimal Ossification” — My New Paper

by Aaron Nielson — Thursday, Nov. 30, 2017@Aaron_L_Nielson

A draft of my latest paper — Optimal Ossification — is now available. It will be published next spring in the George Washington Law Review’s annual administrative law issue.*

Here is the abstract:

One of the dirtiest words in administrative law is “ossification”—the term used for the notion that procedural requirements force agencies to spend a long time on rulemakings. When regulatory reform is discussed, all too often the response is “ossification.” Ossification, however, is misunderstood. Even leaving aside the other benefits of procedures, delay itself can be valuable. For instance, procedural delay can operate as a credible commitment mechanism against change, thereby encouraging increased private participation in the regulatory scheme at a lower “price” for the agency. Moreover, for the most significant rules, delay gives the public time to respond. When law changes too quickly, public confidence can decrease. To the extent that agencies benefit from public confidence, procedural delay thus can be valuable. At the same time, of course, delay is not always useful and, in any event, there can be too much of a good thing. Not all regulatory schemes need a credible commitment mechanism and sometimes delay undermines rather than enhances public confidence.

The challenge, therefore, is not to eliminate ossification. Rather, the goal should be to maximize ossification’s benefits while minimizing its costs. Hence, when evaluating proposals for reform, it is not enough to simply say “ossification.” Instead, one must search for the optimal amount of ossification. This Article begins to sketch what that more complete analysis might look like.

My title may be provocative. (Well, provocative for an article about regulatory procedure; let’s not kid ourselves — ours is a technical field.) But I think my analysis is straightforward.

Agencies sometimes benefit from being able to credibly commit to the public that a regulatory scheme will not be changed soon — think situations in which the agency is trying to incentive the private sector to make costly capital investments. And agencies also sometimes benefit when the public has time to understand what is happening and why — think situations in which the regulation is both technical and potentially controversial. Thus, sometimes, a certain amount of delay can help rather than hurt the agency. Delay, however, is not always valuable in its own right, and even when it is, there can be too much of it. In other words, delay itself has costs and benefits of its own, apart from all the other costs and benefits of the procedures that cause the delay.

I’ve been batting around some of these themes for the last few years. This symposium piece combines those themes and expands on them.

Anyway, here’s Optimal Ossification. As always, comments are appreciated.

* It will be published alongside articles by Cass Sunstein and J.B. Ruhl. Yup — I’m very much the undercard. Sincere thanks to the George Washington editors for opting to include a junior scholar.

This entry was tagged .

About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School, where he teaches and writes in the areas of administrative law, civil procedure, federal courts, and antitrust. He currently serves as a public member of the Administrative Conference of the United States, a federal agency that studies the administrative process and makes recommendations on ways to improve it. He also co-chairs the Rulemaking Committee of the American Bar Association’s Section of Administrative Law & Regulatory Practice. Previously he chaired the Section's Antitrust & Trade Regulation Committee. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. Follow him on Twitter @Aaron_L_Nielson.

Cite As: Author Name, Title, Yale J. on Reg.: Notice & Comment (date), URL.

One thought on ““Optimal Ossification” — My New Paper

Leave a Reply

Your email address will not be published. Required fields are marked *