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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
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