Empirical Analysis and Administrative Law

Regulatory policy has long been a source of controversy, eliciting criticism and calls for reform from virtually all quarters. In recent years, reform proposals have typically sought to restructure the institutional environment of regulatory policymaking by changing administrative law and thereby restructuring the procedures and institutions of regulatory governance. To understand how regulatory policy might be improved through changes to administrative law, empirical research is needed to evaluate the impacts of different institutional procedures and designs. In this paper, I argue for increased empirical inquiry of administrative law, highlighting the value of empirical analysis by reference to three salient aspects of regulatory procedure: (i) economic analysis of new agency rules; (ii) judicial review of agency rules; and (iii) negotiated rulemaking. The discussion of these areas shows how empirical analysis can help inform choices about regulatory design and suggests that such analysis should go hand in hand with any implementation of regulatory reform.