Dynamic Rulemaking

84 Pages Posted: 11 May 2017

See all articles by Wendy E. Wagner

Wendy E. Wagner

University of Texas at Austin – School of Law

William F. West

Independent

Thomas Owen McGarity

University of Texas at Austin - School of Law

Lisa Peters

Case Western Reserve University - Law Library

Date Written: May 10, 2017

Abstract

In administrative law, it is generally assumed that once an agency promulgates a final rule, its work on that project — provided the rule is not litigated — has come to an end. In order to ensure that these static rules adjust to the times, therefore, both Congress and the White House have imposed a growing number of formal requirements on agencies to “look back” at their rules and revise or repeal ones that are ineffective.

Our empirical study of the rulemaking process in three agencies (N = 462 revised rules to 183 parent rules) reveals that — contrary to conventional wisdom — agencies face a variety of incentives to revise and update their rules outside of such formal requirements. Not the least of these is pressure from those groups that are affected by their regulations. There is in fact a vibrant world of informal rule revision that occurs voluntarily and through a variety of techniques. We label this phenomenon “dynamic rulemaking.” In this Article, we share our empirical findings, provide a conceptual map of this unexplored world of rule revisions, and offer some preliminary thoughts about the normative implications of dynamic rulemaking for regulatory reform.

Keywords: Administrative Law, Rulemaking, Revision

Suggested Citation

Wagner, Wendy E. and West, William F. and McGarity, Thomas Owen and Peters, Lisa, Dynamic Rulemaking (May 10, 2017). 92 N.Y.U. Law Review 183 (2017); U of Texas Law, Public Law Research Paper ; Case Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=2966564

Wendy E. Wagner (Contact Author)

University of Texas at Austin – School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

William F. West

Independent ( email )

No Address Available

Thomas Owen McGarity

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1384 (Phone)

Lisa Peters

Case Western Reserve University - Law Library ( email )

11075 East Boulevard
Cleveland, OH 44106
United States

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