Assessing the Advocacy of Negotiated Rulemaking: A Response to Philip Harter

Abstract

For many years, advocates of negotiated rulemaking have advanced enthusiastic claims about how negotiated rulemaking would reduce litigation and shorten the rulemaking process. In an earlier study, I tested these claims systematically by assessing the effectiveness of negotiated rulemaking against existing rulemaking processes. I found that negotiated rulemaking neither saves time nor reduces litigation. Recently, Philip Harter, a longtime advocate of negotiated rulemaking, has criticized my study and asserted that negotiated rulemaking has succeeded remarkably in achieving its goals. Harter criticized the way I measured the length of the rulemaking process, claimed that I failed to appreciate differences in litigation, and suggested that my results did not matter in any case since negotiated rulemaking has resulted in rules that are demonstrably better than rules developed through conventional regulatory practices. In this paper, I respond to Harter's continued defense of negotiated rulemaking, showing why none of his criticisms undercuts the findings of my original research. Harter disregarded basic standards for empirical research in the arguments he advanced to criticize the way I analyzed rulemaking duration and the incidence of litigation. Moreover, Harter has failed to provide any credible evidence to support his present claim that negotiated rulemaking has resulted in rules that are better than those developed through conventional processes. The absence of support for Harter's criticisms, like the absence of support for the claims made by other advocates of negotiated rulemaking over the years, serves only to underscore the conclusion of my original research that the promises made for negotiated rulemaking remain unfulfilled.