Empirical Analysis and Administrative Law

Empirical research has been used to study many areas of law, including administrative law. In this article Professor Coglianese discusses the current and future role of empirical research in understanding and improving administrative rulemaking. Criticism of government regulation and calls for regulatory reform have grown in the last few decades. Empirical research is a valuable tool for designing reforms that will truly improve the effectiveness, efficiency, and legitimacy of regulatory governance. Specifically, Professor Coglianese discusses three areas of administrative law that have benefited from empirical research—economic review of new regulations, judicial review of agency rulemaking, and negotiated rulemaking. Agencies are now required to perform a cost-benefit analysis of all major regulations. Those analyses themselves are empirical in nature, and further empirical research has been conducted to examine what effect these analyses have on the rulemaking process. Judicial review has also benefited from empirical research, and would benefit from still further such research. Scholars debate whether judicial review improves governance or ossifies agencies due to fear of potential judicial challenges. Despite the widespread belief that agencies are retreating from rulemaking, the empirical evidence is actually more mixed, with few agency rules ever reversed due to judicial review. Finally, negotiated rulemaking is meant to avoid litigation and speed up the rulemaking process, yet the empirical research to date shows that negotiated rules take as long to develop as nonnegotiated rules, and are challenged more often than nonnegotiated rules. Overall, empirical research on how procedures affect administrative agencies is vital to improving administrative law in ways that will contribute to more effective and legitimate governance. * Associate Professor of Public Policy and Chair, Regulator