Why Agencies Act- A Reassessment of the Ossification Critique of
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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 ofhttps://ir law fsu.edu/articles/21This Article is brought to you for free and open access by Scholarship Repository. It has been accepted for inclusioWhy 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 AFlorida 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 broad 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 ofently fail to direct an agency to focus on particular problems within the ambit of an agency's regulator.' authority and rarely demand that agencies aWhy 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 ageFlorida 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 of 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, agencWhy 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 pFlorida 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 College 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 ofuez. Jerry Mashaw. Ron Levin. Margo Schlanger. Manuel Utset, the faculties of the Washington University. Southern Methodist University, and Florida StWhy 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-DisciplinaFlorida 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 “regulation" 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 ofxisting policy and repealing existing policy252OHIO STA TE L4 tỉ'JOURNAL[Vol. 70:2clause of the Administrative Procedure Act (APA) as one of. if not tWhy 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 judicial 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 ofuing that such review is structured to encourage agencies to be more careful when selling policy, and to take into account a broad array of stakeholdeWhy 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 encouragFlorida 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 ofees. 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 sWhy 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 review 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 ofs that affect the propensity of individuals within an agency to act. psychological influences that also affect that propensity, and agency decision-maWhy 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. GameFlorida 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 ofenfeld. Dentyslifying E>eoss(ficalion: Rethinking Recent Proposals to Modify Judicial Review of Notice and Comment Rulemaking. 75 1EX L. REV. 483.483Why 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 changeFlorida 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 action.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 alwaysWhy 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 whichFlorida 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 regulatory 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 oftified and discourage it otherwise.In short, this article recognizes that judicial review is but one of a myriad of factors that affect whether an ageWhy 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 agencFlorida 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 change 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 ofnomic perspective, if an agency systematically overestimates the demand for regulation, then increasing rhe cost of regulation may cause the agency toWhy 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 coGọi ngay
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