Hiding in Plain Sight? Timing and Transparency in the Administrative State

57 Pages Posted: 19 Nov 2009 Last revised: 20 Dec 2009

Jacob E. Gersen

Harvard University

Anne Joseph O'Connell

University of California, Berkeley - School of Law

Abstract

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.

Keywords: administrative law, rulemaking, timing, empirical legal studies

JEL Classification: K00, K23

Suggested Citation

Gersen, Jacob E. and Joseph O'Connell, Anne, Hiding in Plain Sight? Timing and Transparency in the Administrative State. 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. Available at SSRN: https://ssrn.com/abstract=1509026

Jacob E. Gersen

Harvard University ( email )

1875 Cambridge Street
Cambridge, MA 02138
United States

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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