Participation, process and policy: the informational value of politicised judicial review

We develop a model of “notice and comment†rulemaking, focussing on strategic issues facing agencies and interest groups in light of judicial review in this process. Specifically, we analyse the incentives for agencies and groups to produce and reveal information during rulemaking. We show that judicial review can produce informed policymaking, but that participatory rulemaking can bias agency policymaking in favour of groups with access to the rule-making process. In addition, the model allows an analysis of doctrines of judicial review of agency policymaking. The model reveals that “politicised†judicial review can be beneficial because of its effects on agency incentives for information acquisition in policymaking. Accordingly, socially optimal judicial review may be “legally irrational†and, contrary to standard doctrines of judicial review in the United States, judicial deference to rules with thin records can be optimal.