Hiding in Plain Sight? Timing and Transparency in the Administrative State
Jacob E. Gersen
Anne Joseph O'Connell
University of California, Berkeley - School of Law
University of Chicago Law Review, Vol. 76, 2009
UC Berkeley Public Law Research Paper No. 1509026
U of Chicago Law & Economics, Olin Working Paper No. 505
U of Chicago, Public Law Working Paper No. 287
Anecdotal evidence of agencies burying bad news is rife in law and politics. The bureaucracy regularly is accused of announcing controversial policies on holidays and weekends when public attention is elsewhere. We show that this conventional wisdom is wrong, or at least significantly incomplete. The conventional wisdom is riddled with theoretical holes, and there is little systematic empirical evidence to support it. After critiquing the conventional account of agencies hiding bad news, we articulate and defend a revised theory of strategic timing in administrative law. We argue that timing decisions rarely affect the visibility of decisions but can drive up the costs of monitoring and responding for interest groups and legislative coalitions. Agency discretion to choose when to announce policy decisions can even allow agencies to influence which interest groups monitor the regulatory process and therefore whose preferences must be taken into account. We evaluate both the conventional wisdom and our revised theory using twenty-five years of empirical evidence. We then develop the implications for administrative law doctrine and institutional design of the bureaucracy.
Number of Pages in PDF File: 57
Keywords: administrative law, rulemaking, timing, empirical legal studies
JEL Classification: K00, K23
Date posted: November 19, 2009 ; Last revised: December 20, 2009
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