Testing the Ossification Thesis: An Empirical Examination of Federal Regulatory Volume and Speed, 1950-1990

Abstract

We present one of the first empirical assessments of the prominent ossification thesis in administrative law scholarship. Scholars argue that the federal courts’ embrace of the “hard look” doctrine of judicial review in the 1970s, along with the imposition of procedural constraints on agency autonomy by the White House and Congress in the 1980s, have severely limited the ability of federal agencies to regulate in the public interest. This conventional wisdom has remained largely untested. To test it, we constructed an original database of the universe of notice-and-comment rules proposed and promulgated by the U.S. Department of the Interior (DOI) from 1950-1990. We examine whether DOI agencies promulgated fewer rules in the supposedly ossified era of 1976-1990 than they did in earlier years; whether there is evidence of a movement away from notice-and-comment rules toward ostensibly illegal regulation via more informal policy devices; and whether notice-and-comment regulations took significantly longer to complete in the allegedly ossified era. We find mixed and relatively weak evidence of ossification. The federal agencies in our study remain able to promulgate large volumes of regulations, and do not appear to be systematically substituting informal policy devices for notice-and-comment regulations. Additionally, while rules do take somewhat longer to complete in the ossified era than before, the major-ity of supposedly ossified regulations are promulgated within one year of proposal and the vast majority are promulgated within two years. We conclude that attempts made by the courts, White House, and Congress to restrict bureaucratic autonomy in favor of increased accountability have probably not unduly harmed rule-making in the aggregate. Would-be reformers of the federal administrative process may wish to think twice before radically altering the current system in ways that decrease opportunities for oversight.