Abstract

http://ssrn.com/abstract=140798
 
 

Citations (3)



 
 

Footnotes (294)



 


 



Ossification Revisited: Does Arbitrary and Capricious Review Significantly Interfere With Agency Ability to Achieve Regulatory Goals Through Informal Rulemaking?


William S. Jordan III III


University of Akron - School of Law



Abstract:     
This article reports the results of an examination of the effects of a decade's worth of D.C. Circuit remands of informal rules under the "hard look" doctrine. The research identified 71 such remands. Of those, 34 are characterized for a variety of reasons as having essentially no impact on the agency's ability to achieve its goals through the informal rulemaking process. The reasons include the court's explicit refusal to vacate the rule, the court's willingness to delay imposition of the mandate until the agency had recovered, and the insignificant nature of the remand itself.

The author examined the aftermath of the remaining 37 remands to determine whether and to what extent the agency was able to recover. The results show that agencies usually succeed in achieving their regulatory goals through informal rulemaking.

The author argues that these results challenge the ossification critique of hard look review, at least to the extent that the critique asserts that hard look review significantly interferes with agency pursuit of regulatory goals through informal rulemaking. He suggests that the real story of agency reliance upon informal rulemaking is one of substantial success despite hard look review, and that we should consider returning to a cooperative partnership model to characterize the agency-court relationship with respect to arbitrary and capricious review of agency rules.

Number of Pages in PDF File: 70

working papers series


Download This Paper

Date posted: December 8, 1998  

Suggested Citation

Jordan III, William S., Ossification Revisited: Does Arbitrary and Capricious Review Significantly Interfere With Agency Ability to Achieve Regulatory Goals Through Informal Rulemaking?. Available at SSRN: http://ssrn.com/abstract=140798 or http://dx.doi.org/10.2139/ssrn.140798

Contact Information

William S. Jordan III (Contact Author)
University of Akron - School of Law ( email )
150 University Ave.
Akron, OH 44325-2901
United States
330-972-6751 (Phone)
330-258-2343 (Fax)
Feedback to SSRN


Paper statistics
Abstract Views: 875
Downloads: 122
Download Rank: 134,207
Citations:  3
Footnotes:  294

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo6 in 0.219 seconds