“Optimal Ossification” — My New Paper

Editor’s Note, from Professor Nielson’s paper:

it does not matter whether an agency likes a procedural requirement; if the agency does not comply with the requirement, a court or OIRA will be there to enforce compliance.

From: Notice & Comment | A Blog from the Yale Journal on Regulation and the ABA Section of Administrative Law & Regulatory Practice

by Aaron Nielson

A draft of my latest paper — Optimal Ossification — is now available. It will be published next spring in the George Washington Law Review’s annual administrative law issue.*

Here is the abstract:

One of the dirtiest words in administrative law is “ossification”—the term used for the notion that procedural requirements force agencies to spend a long time on rulemakings. When regulatory reform is discussed, all too often the response is “ossification.” Ossification, however, is misunderstood. Even leaving aside the other benefits of procedures, delay itself can be valuable. For instance, procedural delay can operate as a credible commitment mechanism against change, thereby encouraging increased private participation in the regulatory scheme at a lower “price” for the agency. Moreover, for the most significant rules, delay gives the public time to respond. When law changes too quickly, public confidence can decrease. To the extent that agencies benefit from public confidence, procedural delay thus can be valuable. At the same time, of course, delay is not always useful and, in any event, there can be too much of a good thing. Not all regulatory schemes need a credible commitment mechanism and sometimes delay undermines rather than enhances public confidence.

The challenge, therefore, is not to eliminate ossification. Rather, the goal should be to maximize ossification’s benefits while minimizing its costs. Hence, when evaluating proposals for reform, it is not enough to simply say “ossification.” Instead, one must search for the optimal amount of ossification. This Article begins to sketch what that more complete analysis might look like.

My title may be provocative. (Well, provocative for an article about regulatory procedure; let’s not kid ourselves — ours is a technical field.) But I think my analysis is straightforward.

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