Abstract
Agencies use notice-and-comment rulemaking to issue countless regulations with substantial economic stakes. The empirical literature on rulemaking has produced a complex set of descriptive findings yet has struggled with informal concerns about selection bias. This article characterizes notice and comment as a persuasion game played between regulators and outside interests. Analysis of this stakeholder-balancing model yields three key theoretical payoffs: An informational rationale for regulators to write rules with higher private and social costs, an explanation for strategic positioning by regulators even without oversight, and clarification that adverse priors are a more powerful mobilizing force than adverse policies. The model’s two-sided selection dynamics reveal that well-established empirical regularities are inconsistent with extreme public-interest zealotry and strong capture but fit a range of intermediate outcomes. To obtain deeper insights about bias in rulemaking, the model suggests focusing on the cost of rule revision, rule movement following abstention, and variation in stakeholder preferences.
| Original language | English (US) |
|---|---|
| Pages (from-to) | 642-656 |
| Number of pages | 15 |
| Journal | Journal of Politics |
| Volume | 82 |
| Issue number | 2 |
| DOIs | |
| State | Published - Apr 1 2020 |
Funding
Support for this research was provided by the Inequality and Social Policy Program at Harvard’s Kennedy School, the Olin Center for Law and Economics at Harvard Law School, and the Washington Center for Equitable Growth. Data and supporting materials necessary to reproduce the numerical results in the article are available in the JOP Dataverse (https://dataverse.harvard.edu/dataverse/jop). An online appendix with supplementary material is available at https://doi.org/10.1086/706891. I thank Daniel Carpenter, Kenneth Shepsle, Jon Rogowski, Nicholas Parillo, Sandy Gordon, Susan Yackee, Steven Rashin, Ryan Huber, Devah Pager, Maya Sen, Frank Baumgartner, Jonathan Libgober, Jeff Picel, and Ash Craig for their kind feedback on earlier drafts. I also thank the anonymous reviewers for their comments, as well as the formal theory editor of the Journal of Politics, Sean Gailmard. Previous versions of this manuscript were presented at Harvard?s Inequality and Social Policy Seminar, Political Economy Workshop, and American Politics ResearchWorkshop, as well as the Southern Political Science Association.
ASJC Scopus subject areas
- Sociology and Political Science