Building a Framework for Governance: Retrospective Review and Rulemaking Petitions

Abstract

This article demonstrates that collaborative approaches to regulatory policymaking are largely underutilized as a result of regulatory inertia. It proposes the expanded use of petitions for rulemaking as a device for breaking this inertia. Individual citizens or groups would file a petition offering a proposed regulatory alternative, which may include collaborative programs such as private standard-setting and first or third party certification of regulatory compliance. Any successful petition would demonstrate that the proposed alternative is equally as protective of the public welfare as the existing regulation but imposes less onerous compliance burdens on regulated entities. By marrying the principles of collaborative governance and retrospective review, the article seeks to move the dialogue beyond stale debates concerning the appropriate quantity or stringency of regulations and identify opportunities for minimizing regulatory burdens while preserving the strong public welfare protections that are the hallmark of the modern regulatory state.

Keywords: retrospective review, collaborative governance, administrative law

JEL Classification: K23