Making Experimental Rules Work

44 Pages Posted: 1 May 2015

See all articles by Zachary James Gubler

Zachary James Gubler

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Date Written: February 15, 2015

Abstract

Both theory and practice suggest that there are potentially significant gains associated with an experimental approach to lawmaking, that is to say, adopting laws on a pilot basis in order to generate empirical data that can be used to inform decisions about the optimal long-term policy. Yet, with few exceptions, those legislative entities that are best positioned to engage in experimentation – administrative agencies – rarely do so, probably at least in part because of interest group opposition. This article suggests that a somewhat obscure, though significant, rulemaking by the Securities and Exchange Commission (“SEC”) holds important clues about how one might make policy experimentation happen more often and work better when it does.

The case study involves the SEC’s efforts to remove the longstanding rules that regulate short sales, whereby investors seek to profit from a stock price decline by selling borrowed stock that gets returned to the lender, with interest, at a later point in time. This case study represents one of the few instances where the SEC has adopted an experimental approach to rulemaking. The case study yields two important insights about policy experimentation more generally. First, the substantive challenges to policy experimentation (including sampling issues and concerns over data mining) are probably surmountable, as long as agencies are particularly attuned to potential biases created by the experiment. Second, the procedural challenges to policy experimentation (which include possible interest group opposition and the costs that judicial review places on experimental agency rulemakings) are more problematic.

This second insight suggests that it might be necessary to take steps to encourage greater experimentation. The article sketches the outlines of one such approach under which agency experiments would get special judicial deference and the notice-and comment process would be re-conceptualized in the experimental context to allow for public participation and scrutiny only after the experiment has run its course. This approach would effectively subsidize experimentation while at the same time respecting the principles of transparency and accountability that underlie the administrative process.

Keywords: administrative law, securities regulation, experimentalism, short sales

JEL Classification: K22, K23

Suggested Citation

Gubler, Zachary James, Making Experimental Rules Work (February 15, 2015). Administrative Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2600640

Zachary James Gubler (Contact Author)

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

Box 877906
Tempe, AZ 85287-7906
United States

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