My Latest: Sticky Regulations (A Benefit of Ossification?)

From: Notice & Comment

by Aaron Nielson

I’m pleased to announce that my latest article, Sticky Regulations, has been posted to SSRN. It will be published next year in The University of Chicago Law Review. If you are interested, I’m going to present it on April 21st at the Rethinking Due Process Public Policy Conference hosted by the Center for the Study of the Administrative State. This is still a very (very) early draft; I appreciate thoughts.

Scholars regularly bemoan the “ossification” of notice-and-comment rulemaking. Many fret that despite their benefits, regulatory procedures may harm the public by delaying change. To this I say: Not so fast! Ossification may have an upside: the ability for agencies to create what I dub “sticky regulations.” A sticky regulation is a rule that cannot be undone or amended quickly. Stickiness can be valuable to agencies pursuing long-term policy goals. If regulated parties, for instance, know that agency-created incentives cannot be changed at the snap of a finger, they are much more likely to invest in innovations that the agency seeks to encourage. Agencies, in other words, need a credible commitment mechanism to induce cooperation — some mechanism to reassure regulated parties that the scheme will be stable. Why can’t ossification act as that commitment mechanism? Hence, the notion that procedural safeguards (which I generally favor) impose too many costs on agencies may be too simplistic. Those very procedures, after all, sometimes may help — not hurt — agencies and the public.

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