Federal Rulemaking Research Articles

Slow-Rolling, Fast-Tracking, and the Pace of Bureaucratic Decisions in Rulemaking

The slow pace of administrative action is arguably a defining characteristic of modern bureaucracy. The reasons proffered for delay are numerous, often centering on procedural hurdles or bureaucrats' ineptitude. I offer a different perspective on delay in one important bureaucratic venue: the federal rulemaking process. I argue that agencies can speed up (fast-track) or slow down (slow-roll) the rulemaking process in order to undermine political oversight provided by Congress, the president, and the courts. That is, when the political climate is favorable agencies rush to lock in a rule, but when it is less favorable they wait out the tenure of current political overseers. I find empirical support for this proposition using an event history analysis of more than 9,600 agency rules from 147 agencies. The results support the interpretation that agencies strategically delay, and that delay is not simply evidence of increased bureaucratic effort.

Let's make a deal: unraveling stakeholder influence on Colorado fracking policy

Fracking policy is a contentious issue that is increasingly being debated within state administrative agencies. Though scholars have revealed that stakeholders can be influential in federal rulemakings through framing, it is unclear whether groups at the state level are equally influential. This research employs a frame analysis approach to determine whether stakeholders use similar frames to those of federal groups, and whether they are comparably influential on regulatory outputs. I provide original interview data from a range of stakeholder groups and agency staff to unravel how stakeholders tried to influence the Colorado Oil and Gas Conservation Commission's (COGCC) Statewide Groundwater Baseline Sampling and Monitoring Rule. This research confirms that stakeholder groups use similar frames to their counterparts in federal contexts. However, whether stakeholder framing efforts influenced the agency, was in part a function of their access, resources, and relationships to agency personnel. In this case, industry groups appeared to have an advantage, but this may shift based on the preference of the governor and which groups are invited to debate policy with agency personnel. This article concludes with a discussion of how scholars might consider evaluating stakeholder influence going forward.

The Discovery Sombrero, and Other Metaphors for Litigation

Academics, judges, and policymakers know little about the timing, volume, and cost of discovery in our civil justice system. This information deficit is most severe with respect to the most salient discovery-related issue for practitioners today: preservation — the duty to preserve relevant data when litigation is reasonably anticipated. This collective ignorance feeds uncertainty at both the policy level and at the doctrinal level. In this paper, I present original, empirical research on the nature and costs of preservation and discovery. This research is the first, and to date only, systematic effort to measure the extent and costs of preservation activity. I describe key findings and propose three new stylized facts: the discovery sombrero, the preservation iceberg, and the long tail of litigation costs. I then provide examples of how these stylized facts help inform doctrinal and policy questions on preservation and discovery, including the choice between common law development and federal rule-making, the choice between reliance on legal reform or technological innovation to control costs, and the question of how to tailor the Federal Rules of Civil Procedure to heterogeneous cases without sacrificing the Rules’ commitment to transubstantivity.

The Role of Regulatory Impact Analysis in Federal Rulemaking

Regulatory impact analysis (RIA) is a tool regulators use to help guide them through the decision-making process when promulgating regulations. When used properly, it has the potential to extend thousands of lives, improve quality of life for citizens, and bestow enormous net benefits on the public. While some difficulties are inherent in the analytical process that produces RIAs, they are not insurmountable. A well-done RIA is a powerful way to gather information for decision-makers, such that regulators are better informed before intervening in markets, and regulations are more likely to achieve objectives.

Regulating the Family: The Impact of Pro-Family Policymaking. Assessments on Women and Nontraditional Families

Beginning in the 1980s, pro-family advocates lobbied the Reagan administration to take a stronger, more direct role in enforcing traditional family norms through agency rulemaking. In 1986 the White House Working Group on the Family published a report entitled, The Family: Preserving America’s Future, detailing what its authors perceived to be the biggest threats to the “American household of persons related by blood, marriage or adoption – the traditional . . . family.” These threats included a lax sexual culture carried over from the 1960s, resulting in rising divorce rates, children born “out of wedlock,” and increased acceptance of “alternative lifestyles.” The report also identified increased dependency on governmental anti-poverty programs, including welfare and public housing, as a key source for decreasing individual family economic power and security. The report was followed by swift executive action that required federal agencies to examine all proposed rulemaking through a “pro-family” lens and determine the impact on “family wellbeing,” specifically “the marital commitment” and the message sent “to young people concerning the relationship between their behavior, their personal responsibility, and the norms of our society.” To satisfy this requirement, agencies were mandated to conduct policy assessments that were analogous to Environmental Impact Statements, but focused on safeguarding “pro-family” values rather than the environment. After being momentarily rescinded under the Clinton administration, the “pro-family” policymaking assessments were reinstated by Congress in 1998 at the height of the “Culture Wars.” Although these “pro-family” requirements remain in effect today, they have gone largely unnoticed by scholars and commentators. This paper explores the development and use of the “pro-family” mandate within federal rulemaking. It details how the definition of family that was enunciated in a 1986 White House Report continues to inform and constrain federal rulemaking concerning women and “nontraditional” families. The “pro-family” lens requires agencies to filter proposed rules through a narrow definition of family and precludes the development of polices that are balanced and forward-looking. By favoring policies that focus on the preservation of traditional different-sex, two-parent families, the “pro-family” policymaking assessments strongly discourage rulemaking and policies that would benefit non-traditional families, including multigenerational, single-parent, or LGBT families. These excluded families, however, are often the most vulnerable and the most in need of assistance. The views expressed in the1986 White House Report were based on discredited social science data and bias. They have no place in contemporary policymaking because they fail to reflect the diversity and evolution of the American family — a reflection acutely necessary if we are to create and implement meaningful social policy that will benefit all families.

Some Very Personal Reflections on the Rules, Rulemaking, and Reporters

My entry into the world of federal rulemaking was one of those unpredictable but welcome fortuities of life. In early 1961, more than a half century ago, I was a happy and progressing associate in a prominent medium-sized, Wall Street, New York City law firm. Columbia Law School approached me to be the Associate Director of its newly formed Project on International Procedure. They dangled several attractive incentives: I could try my hand at teaching some civil procedure; hobnob with the giants of the Columbia faculty, like Herb Wechsler, Walter Gellhorn, Maury Rosenberg, and Jack Weinstein; and take my first trip to Europe to work with proceduralists in several countries on international judicial assistance matters.

Improving the assessment and valuation of climate change impacts for policy and regulatory analysis

The social cost of carbon (SCC) is a monetized metric for evaluating the benefits associated with marginal reductions in carbon dioxide (CO2) emissions. It represents the expected welfare loss from the future damages caused by the release of one tonne of CO2 in a given year, expressed in consumption equivalent terms. It is intended to be a comprehensive measure, taking into account changes in agricultural productivity, human health risks, loss of ecosystem services and biodiversity, and the frequency and severity of flooding and storms, among other possible impacts. Estimating the SCC requires long-term modeling of global economic activity, the climate system, and the linkages between the two through anthropogenic greenhouse gas (GHG) emissions and the effects of changing climatic conditions on economic activity and human well-being. The United States government currently uses the SCC in regulatory benefit-cost analyses to assess the welfare effects of changes in CO2 emissions. Consistent application of the SCC to federal rulemaking analyses began in 2009-2010 with the development of a set of global SCC estimates that employed three prominent integrated assessment models (IAMs) -- DICE, FUND, and PAGE. The U.S. government report identified a number of limitations associated with SCC estimates in general and itsmore » own assumptions in particular: an incomplete treatment of damages, including potential “catastrophic” impacts; uncertainty regarding the extrapolation of damage functions to high temperatures; incomplete treatment of adaptation and technological change; and the evaluation of uncertain outcomes in a risk-neutral fashion. External experts have identified other potential issues, including how best to model long-term socio-economic and emissions pathways, oversimplified physical climate and carbon cycle modeling within the IAMs, and an inconsistency between non-constant economic growth scenarios and constant discount rates. The U.S. government has committed to updating the estimates regularly as modeling capabilities and scientific and economic knowledge improves. To help foster further improvements in estimating the SCC, the U.S. Environmental Protection Agency and the U.S. Department of Energy hosted a pair of workshops on “Improving the Assessment and Valuation of Climate Change Impacts for Policy and Regulatory Analysis.” The first focused on conceptual and methodological issues related to integrated assessment modeling and the second brought together natural and social scientists to explore methods for improving damage assessment for multiple sectors. These two workshops provide the basis for the 13 papers in this special issue.« less

Intervention of Right in Judicial Proceedings to Review Informal Federal Rulemakings

The codification of the Federal Rules of Civil Procedure in 1938 (the “Federal Rules”) created not only a more transactional approach to litigation, but also the flexible party structure that was necessary for “public law litigation” to flourish. Indeed, many argue that intervention by non-parties in public law cases is essential to ensure that the court can hear from and protect the wide range of interests likely to be impacted by its decision. This Article seeks to make a case for limiting intervention as of right in a specific subset of public law proceedings –– those brought to review the legality of informal federal rulemakings pursuant to the Administrative Procedure Act (“APA” or the “Act”). The courts in these cases are placed in a difficult position in considering applications to intervene. On one hand, given the narrow scope of judicial review it is unclear how a court will benefit from the addition of defendant-intervenors seeking to uphold the administrative rule. Instead the court faces the likelihood of information overload and/or information degradation as defendant-intervenors incorporate duplicative or irrelevant arguments into the proceedings. On the other hand, when a court chooses to deny such intervention, it creates the possibility of a lengthy appeal that will further delay judicial review. In sum, intervention practice under the Federal Rules harms the rights of those entitled to judicial review of an agency rulemaking and, most importantly, negatively impacts the public as a whole by reducing the efficiency of the administrative rulemaking process. As such, this Article argues that the practice is inconsistent with both the APA and the intent of third-party practice under the Federal Rules.

The Dodd–Frank Act's Consequences for the Energy Industry

The stated purpose of Dodd–Frank is to reduce systemic risk, increase transparency of the financial markets, and promote market integrity. Most likely, Dodd–Frank will affect energy companies in connection with their energy marketing, hedging, and trading activities – in other words, in connection with energy “swaps.” The consequences will range up and down a sliding scale depending on a particular firm's activities and the outcome of a federal rulemaking process still many months from completion.

Frames of Influence: U.S. Environmental Rulemaking Case Studies

AbstractThe purpose of this article was to question whether interest group actions during the pre‐proposal stage of U.S. federal rulemaking influences the language proposed in natural resource agency rules. The influence of interest groups during this stage was examined across three case studies: (1) the United States Fish and Wildlife Service (USFWS) critical habitat designation for Nebraska's Salt Creek tiger beetle, (2) the USFWS critical habitat designation for the Utah/Arizona Shivwits and Holmgren milk vetch, and (3) the USFWS delisting of the Northern Rocky Mountain gray wolf population from the endangered species list. To analyze these three cases, a frame analysis approach is used and offers evidence to support the proposition that the instructive, expertise, and fiscal feasibility frames that stakeholders used during the pre‐proposal stage can shape the language of a Notice of Proposed Rulemaking. These cases suggest the rich potential for careful study of the earliest stages in the regulatory and administrative rulemaking process in the United States and beyond.

Estimating the Social Cost of Carbon for Use in U.S. Federal Rulemakings: A Summary and Interpretation

The United States Government recently concluded a year-long process to develop a range of values representing the monetized damages associated with an incremental increase in carbon dioxide (CO2) emissions, commonly referred to as the social cost of carbon (SCC). These values are currently used in benefit-cost analyses to assess potential federal regulations. For 2010, the central value of the SCC is $21 per ton of CO2 emissions and sensitivity analyses are to be conducted at $5, $35, and $65 (2007$). This paper summarizes the methodology and process used to develop the SCC values, complemented with our own commentary about how the SCC can be used to inform regulatory decisions and areas where further research would be particularly useful.

Future of Summary Judgment Foreword: Summary Judgment and the Influence of Federal Rulemaking

This essay provides an overview of symposium articles on The Future of Summary Judgment that were submitted in connection with the Section on Litigation’s program on summary judgment at the 2010 Annual Meeting of the Association of American Law Schools. Contributions to the symposium by Professors Edward Brunet, Stephen Burbank, Jeffrey Cooper, Steven Gensler, and Linda Mullenix explore issues regarding (1) amendments to Federal Rule 56 that are set to take effect on December 1, 2010; (2) emerging safeguards to prevent improvident grant of summary judgment; (3) the potential of summary judgment to impact interrelated aspects of the pretrial process, including the 12(b)(6) motion to dismiss and class action litigation; and (4) the future of the federal standard for summary judgment in diversity cases. Although the articles explore a wide range of issues relating to summary judgment, a dominant subtext is the interplay between summary judgment and federal rulemaking, including the impact of federal rulemaking on summary judgment, the effect of the transsubstantive assumption of the Rules Enabling Act, and the limits of the substantive rights prohibition of the Rules Enabling Act. The essay discusses also (1) how failure to amend Rule 56, absent consensus, leads to substantial variation in summary judgment practice in the federal courts because federal rulemakers respond to lack of consensus by abandoning proposed Rule change or by providing broad discretion to trial judges regarding normative decisions; and (2) how the justices’ views on the importance of uniform application of Federal Rules in diversity cases led to the splintered decisions in the Supreme Court’s recent Erie decision, Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co.

New Health Care Law Brings Changes

New Health Care Law Brings Changes

The Case Against Mass E‐mails: Perverse Incentives and Low Quality Public Participation in U.S. Federal Rulemaking

AbstractLarge‐scale e‐mail campaigns are a staple in the modern environmental movement. Interest groups increasingly use online mobilizations as a way to raise awareness, money, and membership. There are legitimate political, economic, and organizational reasons for doing so, but these gains may come at the expense of a more substantial and efficacious role for citizens who wish to use e‐mail to engage in public participation. This paper situates a close examination of the 1000 longest modified MoveOn. Org‐generated e‐mails sent to the Environmental Protection Agency (EPA) about its 2004 mercury rulemaking, in the broader context of online grassroots lobbying. The findings indicate that only a tiny portion of these public comments constitute potentially relevant new information for the EPA to consider. The vast majority of Move On comments are either exact duplicates of a two‐sentence form letter, or they are variants of a small number of broad claims about the inadequacy of the proposed rule. This paper argues that norms, rules, and tools will emerge to deal with the burden imposed by these communications. More broadly, it raises doubts about the notion that online public participation is a harbinger of a more deliberative and democratic era.

Administrative Procedures and Bureaucratic Performance: Is Federal Rule-making "Ossified"?

We provide the first empirical assessment of the ossification thesis, the widely accepted notion that procedural constraints on federal agencies have greatly hindered the ability of those agencies to formulate policy through notice and comment rulemaking. Using data that covers all active federal rule-writing agencies from 1983 to 2006, our results largely disconfirm the ossification thesis. Agencies appear readily able to issue a sizeable number of rules, and to do so relatively quickly. Indeed, our empirical results suggest that procedural constraints may actually speed up the promulgation of rules, though our model suggests that this positive effect may decline, or even reverse, as proposed rules age. We conclude that procedural constraints do not appear to unduly interfere with the ability of federal agencies to act, or in most cases, to act in a timely manner.

Divided government and US federal rulemaking

AbstractDespite paying a great deal of attention to the effects of divided government on legislative outputs, scholars of American politics have surprisingly ignored the potential impact of divided government on bureaucratic regulatory outputs. In this article we argue that divided government should reduce the volume of federal agency rulemaking. We test this hypothesis against a data set covering 21,000 rules from 1983 to 2005. Our study is one of the first to analyze the determinants of federal bureaucratic rulemaking activity across such a long period of time. Our results demonstrate that during periods of divided government, agencies issue fewer rules and fewer substantively significant rules than they do during periods of unified government. These findings suggest that divided government impedes agency rulemaking.

Administrative Procedures and Bureaucratic Performance: Is Federal Rulemaking 'Ossified'?

We provide the first empirical assessment of the ossification thesis, the widely accepted notion that procedural constraints on federal agencies have greatly hindered the ability of those agencies to formulate policy through notice and comment rulemaking. Using data that covers all active federal rule-writing agencies from 1983 to 2006, our results largely disconfirm the ossification thesis. Agencies appear readily able to issue a sizeable number of rules, and to do so relatively quickly. Indeed, our empirical results suggest that procedural constraints may actually speed up the promulgation of rules, though our model suggests that this positive effect may decline, or even reverse, as proposed rules age. We conclude that procedural constraints do not appear to unduly interfere with the ability of federal agencies to act, or in most cases, to act in a timely manner.

Whither Deliberation? Mass E-Mail Campaigns and U.S. Regulatory Rulemaking

Abstract Mass e-mail campaigns are the organizational tool of choice for environmental activists seeking to inform and mobilize their constituencies. Some democratic theorists and reformers pin their hopes for more responsive and informed government policy on Internet-enhanced dialogue and debate. Electronic advocacy campaigns and action alerts are changing the nature and scope of public deliberation in contentious federal rulemaking. This paper examines the new digital landscape of electronic rulemaking through a case study of the recent mercury rulemaking at the US Environmental Protection Agency. Results are presented from an effort to code a sample of 1,000 e-mails selected at random from a dataset of approximately half a million. Particular attention is paid to the unique additions made to form letters.

Presidential Transitions: The Shaping and Reshaping of the Federal Regulatory Agenda

The federal administrative state does more lawmaking, by some measures, than Congress. In 2001, Congress passed 21 major statutes (Barshay 2001) and 115 other public laws (Final Resume 2003). In contrast, in that year, cabinet departments, the Executive Office of the President, and independent agencies promulgated 70 significant rules and 3,369 other rules (GAO 2005). (The law defines significant, or major, rules as those that have at least a $100 million, or otherwise significant, effect on the economy.) This research project examines changes in federal agency rulemaking between 1983 and 2002, using a large dataset from the Unified Agenda of Federal Regulatory and Deregulatory Actions. Do shifts in the quantity of rulemaking-related activities depend on changes in the White House or on the independence of agencies? What role do Congress and the courts play? What are the implications of patterns of regulatory activity for agency legitimacy, judicial deference to agency decisions, and desired agency activities during Presidential transitions? This paper presents some preliminary results.

Website to facilitate public participation in federal rulemaking process.

Website to facilitate public participation in federal rulemaking process.