IDEAS home Printed from https://ideas.repec.org/a/sae/jothpo/v36y2024i2p156-185.html
   My bibliography  Save this article

Strategic avoidance and rulemaking procedures

Author

Listed:
  • Peter Bils

    (Departments of Political Science and Economics, 5718Vanderbilt University, Nashville, TN, USA)

  • Robert J. Carroll

    (Department of Political Science, 14589University of Illinois at Urbana-Champaign, Urbana, IL, USA)

  • Lawrence S. Rothenberg

    (Department of Political Science, 6927University of Rochester Rochester, NY, USA)

Abstract

Informal, ‘notice-and-comment’, rulemaking is the prototypical mechanism employed by US regulators. However, agencies frequently claim their actions exempt from the process, and courts typically agree. Agencies thus face an important strategic choice between informal rulemaking and avoidance. To study this choice, we analyze a model of rulemaking with exemption and empirically analyze agency avoidance. Our model implies that more biased agencies engage in less avoidance, as they face more skepticism from the courts and, thus, require support from group comments to have their rules upheld. Empirically, we find support for this prediction. As for policy implications, we show it is more beneficial to allow exemptions when the agency is more biased.

Suggested Citation

  • Peter Bils & Robert J. Carroll & Lawrence S. Rothenberg, 2024. "Strategic avoidance and rulemaking procedures," Journal of Theoretical Politics, , vol. 36(2), pages 156-185, April.
    • Handle: RePEc:sae:jothpo:v:36:y:2024:i:2:p:156-185
    DOI: 10.1177/09516298241237209
    as

    Download full text from publisher

    File URL: https://journals.sagepub.com/doi/10.1177/09516298241237209
    Download Restriction: no
    File URL: https://libkey.io/10.1177/09516298241237209?utm_source=ideas
    LibKey link: if access is restricted and if your library uses this service, LibKey will redirect you to where you can use your library subscription to access this item
    ---><---

    References listed on IDEAS

    as
    1. Fox, Justin & Stephenson, Matthew C., 2011. "Judicial Review as a Response to Political Posturing," American Political Science Review, Cambridge University Press, vol. 105(2), pages 397-414, May.
    2. Matthew C. Stephenson, 2008. "Evidentiary Standards and Information Acquisition in Public Law," American Law and Economics Review, American Law and Economics Association, vol. 10(2), pages 351-387.
    3. Steven J. Balla & Alexander R. Beck & Elizabeth Meehan & Aryamala Prasad, 2022. "Lost in the flood?: Agency responsiveness to mass comment campaigns in administrative rulemaking," Regulation & Governance, John Wiley & Sons, vol. 16(1), pages 293-308, January.
    4. McCubbins, Mathew D & Noll, Roger G & Weingast, Barry R, 1987. "Administrative Procedures as Instruments of Political Control," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 3(2), pages 243-277, Fall.
    5. Libgober, Brian, 2020. "Meetings, Comments, and the Distributive Politics of Rulemaking," Quarterly Journal of Political Science, now publishers, vol. 15(4), pages 449-481, October.
    6. Gailmard, Sean & Patty, John W., 2017. "Participation, process and policy: the informational value of politicised judicial review," Journal of Public Policy, Cambridge University Press, vol. 37(3), pages 233-260, September.
    7. Balla, Steven J., 1998. "Administrative Procedures and Political Control of the Bureaucracy," American Political Science Review, Cambridge University Press, vol. 92(3), pages 663-673, September.
    Full references (including those not matched with items on IDEAS)

    Most related items

    These are the items that most often cite the same works as this one and are cited by the same works as this one.
    1. Ian R Turner, 2017. "Working smart and hard? Agency effort, judicial review, and policy precision," Journal of Theoretical Politics, , vol. 29(1), pages 69-96, January.
    2. Luis E. Mejía, 2021. "Judicial review of regulatory decisions: Decoding the contents of appeals against agencies in Spain and the United Kingdom," Regulation & Governance, John Wiley & Sons, vol. 15(3), pages 760-784, July.
    3. Howell, William & Shepsle, Kenneth & Wolton, Stephane, 2020. "Executive Absolutism: A Model," MPRA Paper 98221, University Library of Munich, Germany.
    4. John M. de Figueiredo & Edward H. Stiglitz, 2015. "Democratic Rulemaking," NBER Working Papers 21765, National Bureau of Economic Research, Inc.
    5. Amy McKay, 2011. "The decision to lobby bureaucrats," Public Choice, Springer, vol. 147(1), pages 123-138, April.
    6. Bueno de Mesquita, Ethan & Landa, Dimitri, 2015. "Political accountability and sequential policymaking," Journal of Public Economics, Elsevier, vol. 132(C), pages 95-108.
    7. Mercy B. DeMenno, 2019. "Technocracy, democracy, and public policy: An evaluation of public participation in retrospective regulatory review," Regulation & Governance, John Wiley & Sons, vol. 13(3), pages 362-383, September.
    8. James C. Clingermayer, 2004. "Heresthetics and Happenstance: Intentional and Unintentional Exclusionary Impacts of the Zoning Decision-making Process," Urban Studies, Urban Studies Journal Limited, vol. 41(2), pages 377-388, February.
    9. Deepak Hegde & Bhaven Sampat, 2015. "Can Private Money Buy Public Science? Disease Group Lobbying and Federal Funding for Biomedical Research," Management Science, INFORMS, vol. 61(10), pages 2281-2298, October.
    10. Kwan Nok Chan & Shiwei Fan, 2021. "Friction and bureaucratic control in authoritarian regimes," Regulation & Governance, John Wiley & Sons, vol. 15(4), pages 1406-1418, October.
    11. Nathan Favero & Amanda Rutherford, 2020. "Will the Tide Lift All Boats? Examining the Equity Effects of Performance Funding Policies in U.S. Higher Education," Research in Higher Education, Springer;Association for Institutional Research, vol. 61(1), pages 1-25, February.
    12. Persson, Torsten & Tabellini, Guido, 2002. "Political economics and public finance," Handbook of Public Economics, in: A. J. Auerbach & M. Feldstein (ed.), Handbook of Public Economics, edition 1, volume 3, chapter 24, pages 1549-1659, Elsevier.
    13. Lehmann, Markus A., 2002. "Error minimization and deterrence in agency control," International Review of Law and Economics, Elsevier, vol. 21(4), pages 373-391, May.
    14. Tonja Jacobi, 2009. "The Role of Politics and Economics in Explaining Variation in Litigation Rates in the U.S. States," The Journal of Legal Studies, University of Chicago Press, vol. 38(1), pages 205-233, January.
    15. Stavins, Robert, 2001. "Lessons From the American Experiment With Market-Based Environmental Policies," RFF Working Paper Series dp-01-53, Resources for the Future.
    16. Lehr, William & Sicker, Douglas, 2017. "Communications Act 2021," 28th European Regional ITS Conference, Passau 2017 169478, International Telecommunications Society (ITS).
    17. Mireille Chiroleu‐Assouline & Thomas P. Lyon, 2020. "Merchants of doubt: Corporate political action when NGO credibility is uncertain," Journal of Economics & Management Strategy, Wiley Blackwell, vol. 29(2), pages 439-461, April.
    18. Christopher Gandrud & Mark Hallerberg, 2015. "Does Banking Union Worsen the EU's Democratic Deficit? The Need for Greater Supervisory Data Transparency," Journal of Common Market Studies, Wiley Blackwell, vol. 53(4), pages 769-785, July.
    19. Michael Makowsky & Thomas Stratmann, 2014. "Politics, unemployment, and the enforcement of immigration law," Public Choice, Springer, vol. 160(1), pages 131-153, July.
    20. Ando, Amy, 1998. "Delay on the Path to the Endangered Species List: Do Costs and Benefits Matter," RFF Working Paper Series dp-97-43-rev, Resources for the Future.

    Corrections

    All material on this site has been provided by the respective publishers and authors. You can help correct errors and omissions. When requesting a correction, please mention this item's handle: RePEc:sae:jothpo:v:36:y:2024:i:2:p:156-185. See general information about how to correct material in RePEc.

    If you have authored this item and are not yet registered with RePEc, we encourage you to do it here. This allows to link your profile to this item. It also allows you to accept potential citations to this item that we are uncertain about.

    If CitEc recognized a bibliographic reference but did not link an item in RePEc to it, you can help with this form .

    If you know of missing items citing this one, you can help us creating those links by adding the relevant references in the same way as above, for each refering item. If you are a registered author of this item, you may also want to check the "citations" tab in your RePEc Author Service profile, as there may be some citations waiting for confirmation.

    For technical questions regarding this item, or to correct its authors, title, abstract, bibliographic or download information, contact: SAGE Publications (email available below). General contact details of provider: .

    Please note that corrections may take a couple of weeks to filter through the various RePEc services.

    IDEAS is a RePEc service. RePEc uses bibliographic data supplied by the respective publishers.