Abstract

http://ssrn.com/abstract=1967733
 


 



Agency Rulemaking and Political Transitions


Anne Joseph O'Connell


University of California, Berkeley - School of Law

June 1, 2011

Northwestern University Law Review, Vol. 105, 2011
UC Berkeley Public Law Research Paper No. 1967733

Abstract:     
This Article examines agency rulemaking during the periods surrounding political transitions. Using a new comprehensive database on agency rules that covers the period from 1983 to 2010, it describes key stages of the rulemaking process - initiations, completions, and withdrawals - over time. In addition, it analyzes the connection between political transitions, both presidential and congressional, and of one major judicial transition, and the duration of completed rulemakings. Not all rulemakings are completed, however, so this Article also examines the relationship between transitions and whether proposed rulemakings are withdrawn. The primary aim of this Article is to describe major elements of the rulemaking process and to suggest potential consequences of presidential and congressional transitions for that process. The idea that political transitions shape the agency rulemaking process is not a new one. There has been, however, scant empirical evaluation of such transitions for the initiation and completion of rules, particularly across several administrations and broken down over a range of agencies. In addition, there has been almost no analysis of the withdrawal of proposed rules after political transitions. This Article helps to fill both those gaps. Traditionally, after noting particular empirical realities, legal scholarship turns to considering the implications of these realities for doctrine and to suggesting proposals for reform. Instead of this traditional turn, the secondary aim of this Article is to examine the implications of the empirical work for politicians. Specifically, it suggests effective strategies for outgoing and incoming presidents, assuming that these presidents care about advancing their policy preferences.

Number of Pages in PDF File: 64

Keywords: administrative agencies, midnight regulation, rulemaking, initiated rules, completed rules, withdrawn rules, political transitions, Unified Agenda, administrative law

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Date posted: December 4, 2011 ; Last revised: December 8, 2011

Suggested Citation

Joseph O'Connell, Anne, Agency Rulemaking and Political Transitions (June 1, 2011). Northwestern University Law Review, Vol. 105, 2011; UC Berkeley Public Law Research Paper No. 1967733. Available at SSRN: http://ssrn.com/abstract=1967733

Contact Information

Anne Joseph O'Connell (Contact Author)
University of California, Berkeley - School of Law ( email )
215 Boalt Hall
Berkeley, CA 94720-7200
United States
(510) 643-9393 (Phone)
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