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Why Agencies Act- A Reassessment of the Ossification Critique of

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Nội dung chi tiết: Why Agencies Act- A Reassessment of the Ossification Critique of

Why Agencies Act- A Reassessment of the Ossification Critique of

Florida state University College of LawScholarship RepositoryScholarly Publications2009Why Agencies Act: A Reassessment of the Ossification Critique o

Why Agencies Act- A Reassessment of the Ossification Critique ofof Judicial ReviewMark SeidenfeldFollow this and additional works at: https://ir.law.fsu.edu/articlesPart of the Administrative Law CommonsRecommended

CitationMark Seidenfeld, Why Agencies Act: A Reassessment of the Ossification Critique of Judicial Review, 70 Ohio St. L.J. 251 (2009),Available at: Why Agencies Act- A Reassessment of the Ossification Critique of

https://ir law fsu.edu/articles/21This Article is brought to you for free and open access by Scholarship Repository. It has been accepted for inclusio

Why Agencies Act- A Reassessment of the Ossification Critique of

n in Scholarly Publications by an authorized administrator of Scholarship Repository. For more information, please contact efarrell(£law fsu.edu.Why A

Florida state University College of LawScholarship RepositoryScholarly Publications2009Why Agencies Act: A Reassessment of the Ossification Critique o

Why Agencies Act- A Reassessment of the Ossification Critique ofrceived ProblemAgencies often are given discretion about whether and when to address a problem. The modem administrative state IS characterized by bro

ad delegations of policy matters to agencies under statutes that merely identify the area within which the agency is to exercise power. Statutes frequ Why Agencies Act- A Reassessment of the Ossification Critique of

ently fail to direct an agency to focus on particular problems within the ambit of an agency's regulator.' authority and rarely demand that agencies a

Why Agencies Act- A Reassessment of the Ossification Critique of

ctually regulate particular conduct of those whom the statute potentially subjects to agency jurisdiction.1Flexibility, which IS meant to allow an age

Florida state University College of LawScholarship RepositoryScholarly Publications2009Why Agencies Act: A Reassessment of the Ossification Critique o

Why Agencies Act- A Reassessment of the Ossification Critique of a problem can demand the collection and analysis of vast amounts of information to try to determine the cause of the problem and the likely impacts o

f any solution. Arguably, agencies have expertise, enjoy relationships with the stakeholders involved in any controversy Within the agency’s authority Why Agencies Act- A Reassessment of the Ossification Critique of

, and operate in accordance with fairly Simple rulemaking procedures, all of which facilitate such collection and analysis of data. In addition, agenc

Why Agencies Act- A Reassessment of the Ossification Critique of

ies are divorced, at least to some extent, from direct political pressures, and because their actions are national in scope, often have less need to p

Florida state University College of LawScholarship RepositoryScholarly Publications2009Why Agencies Act: A Reassessment of the Ossification Critique o

Why Agencies Act- A Reassessment of the Ossification Critique ofcial review of agency action under the arbitrary and capricious* Patricia A. Dore Professor of Administrative Law. The Florida State University Colleg

e of Law. I would like to thank Greg Mitchell. Barry Wemgast. Roger Noll. Anne Joseph O’Connell. Jim Rossi. Peter Strauss. Matt Stephenson. Dan Rodríg Why Agencies Act- A Reassessment of the Ossification Critique of

uez. Jerry Mashaw. Ron Levin. Margo Schlanger. Manuel Utset, the faculties of the Washington University. Southern Methodist University, and Florida St

Why Agencies Act- A Reassessment of the Ossification Critique of

ate University1 law schools, as well as the participants in the confeieuce on “Administrative Law and Process in the U.S. and Abroad: Cross-Disciplina

Florida state University College of LawScholarship RepositoryScholarly Publications2009Why Agencies Act: A Reassessment of the Ossification Critique o

Why Agencies Act- A Reassessment of the Ossification Critique of of International Relations and Pacific Studies for comments on presentations and earlier drafts of this article.1 In this article. I use the terms “r

egulation" and “action" to refer to any change in policy adopted by an agency, including adopting a policy in the face of regulator vacuum, amending e Why Agencies Act- A Reassessment of the Ossification Critique of

xisting policy and repealing existing policy252OHIO STA TE L4 tỉ'JOURNAL[Vol. 70:2clause of the Administrative Procedure Act (APA) as one of. if not t

Why Agencies Act- A Reassessment of the Ossification Critique of

he major, impediment to regulatory flexibility.2 * Such scholars contend that review, as currently implemented by the courts, places so many analytic

Florida state University College of LawScholarship RepositoryScholarly Publications2009Why Agencies Act: A Reassessment of the Ossification Critique o

Why Agencies Act- A Reassessment of the Ossification Critique of reflected in the commonly stated adage that judicial review causes ossification of the rulemaking process. •’ in essence, these critics argue that ju

dicial review raises the costs of agency adoption of new policy and thereby discourages such action.Elsewhere, Ĩ have defended hard look review by arg Why Agencies Act- A Reassessment of the Ossification Critique of

uing that such review is structured to encourage agencies to be more careful when selling policy, and to take into account a broad array of stakeholde

Why Agencies Act- A Reassessment of the Ossification Critique of

r vantage points regarding the underlying problems and the likely impact of policies meant to alleviate those problems.4 1 argued that review encourag

Florida state University College of LawScholarship RepositoryScholarly Publications2009Why Agencies Act: A Reassessment of the Ossification Critique o

Why Agencies Act- A Reassessment of the Ossification Critique ofssuaded agency action It imposed a cost on society.In this Article. 1 want to revisit that concession for two reasons. First, judicial review imposes

costs on an agency, but regulatory action provides benefits and imposes costs on society as a whole that may not correlate with the costs the agency s Why Agencies Act- A Reassessment of the Ossification Critique of

ees. In essence, the cost that the agency bears in order to act IS the price of action, and because this price does not reflect the marginal cost to s

Why Agencies Act- A Reassessment of the Ossification Critique of

ociety and the benefits that the agency derives from action do not correspond to the social benefits from tliat action, the price can give the agency

Florida state University College of LawScholarship RepositoryScholarly Publications2009Why Agencies Act: A Reassessment of the Ossification Critique o

Why Agencies Act- A Reassessment of the Ossification Critique ofet societal benefit flowing from that action, judicial review can help align the incentives for agency action with that net benefit.Second, judicial r

eview is not the only influence on agency policy setting. Numerous factors influence agency decisions whether and when to act. These include incentive Why Agencies Act- A Reassessment of the Ossification Critique of

s that affect the propensity of individuals within an agency to act. psychological influences that also affect that propensity, and agency decision-ma

Why Agencies Act- A Reassessment of the Ossification Critique of

king structures and processes that can moderate■ See. eg. Jerry L Mashaw. Improving the Environment of Agency Rulemaking: An Essay on Management. Game

Florida state University College of LawScholarship RepositoryScholarly Publications2009Why Agencies Act: A Reassessment of the Ossification Critique o

Why Agencies Act- A Reassessment of the Ossification Critique of. Rhv. 245, 247 (1992); Richard J. Pierce. Jr.. Two Problems in Administrative Law: Polừical Polarity on the District of Columbia Circuit ami Judicial

Deterrence of Agency Rulemating. 1988 Dukh T..J. 300. 300 03. 308 13.' 1 or prominent examples of this literature, see sources collected in Mark Seid Why Agencies Act- A Reassessment of the Ossification Critique of

enfeld. Dentyslifying E>eoss(ficalion: Rethinking Recent Proposals to Modify Judicial Review of Notice and Comment Rulemaking. 75 1EX L. REV. 483.483

Why Agencies Act- A Reassessment of the Ossification Critique of

n 1 (1997).1 See generally id. ar 489-90.2009]WHY AGENCIES ACT253individual decision makers’ influence on agency policy priorities, and thereby change

Florida state University College of LawScholarship RepositoryScholarly Publications2009Why Agencies Act: A Reassessment of the Ossification Critique o

Why Agencies Act- A Reassessment of the Ossification Critique of outcome that would result from taking action is preferable (however the polity's preference is defined I to the outcome that would result from no act

ion.5 But some of these factors might discourage an agency from acting when action is appropriate; others might encourage an agency to act when action Why Agencies Act- A Reassessment of the Ossification Critique of

is inappropriate. Tins complicates the assumption by critics of judicial review, in which I previously acquiesced, that discouraging action IS always

Why Agencies Act- A Reassessment of the Ossification Critique of

a cost of review. It IS possible that judicial review counterbalances factors that encourage agencies to act when action IS not appropriate, in which

Florida state University College of LawScholarship RepositoryScholarly Publications2009Why Agencies Act: A Reassessment of the Ossification Critique o

Why Agencies Act- A Reassessment of the Ossification Critique ofond flexibly to changing circumstances does not mean that an agency should regulate whenever It perceives a problem that happens to fall within its re

gulatory authority'. Instead, administrative law including doctrines of judicial review should be structured to encourage agency action when It is jus Why Agencies Act- A Reassessment of the Ossification Critique of

tified and discourage it otherwise.In short, this article recognizes that judicial review is but one of a myriad of factors that affect whether an age

Why Agencies Act- A Reassessment of the Ossification Critique of

ncy acts in response to a perceived problem. The article, however, is not simply a rebuttal of those who blame judicial review for inappropriate agenc

Florida state University College of LawScholarship RepositoryScholarly Publications2009Why Agencies Act: A Reassessment of the Ossification Critique o

Why Agencies Act- A Reassessment of the Ossification Critique ofe to one problem would allow an agency to spend more resources on other problems Hence, from the perspective of an agency, the issue of whether to cha

nge policy in response to a problem IS really a question of optimizing regulatory priorities given the agency’s budget constraints.6Viewed from an eco Why Agencies Act- A Reassessment of the Ossification Critique of

nomic perspective, if an agency systematically overestimates the demand for regulation, then increasing rhe cost of regulation may cause the agency to

Why Agencies Act- A Reassessment of the Ossification Critique of

choose a level of regulation that is closer to the optimal level than the level it would choose if judicial review did not impose such significant co

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