Making the Invisible Visible

Document Type

Response or Comment

Publication Date

8-7-2019

Publication Information

Yale J. on Reg.: Notice & Comment (Aug. 7, 2019), https://www.yalejreg.com/nc/making-the-invisible-visible-by-emily-bremer/.

Abstract

Rachel Potter’s new book, Bending the Rules, offers an intriguing new look into how agencies strategically use procedural discretion in rulemaking to achieve a desired outcome in the face of opposition. The tools agencies have to engage in this “procedural politicking” (as Potter calls it) arise within the “white space” that is created by the various legal requirements that define the rulemaking process. Potter’s work demonstrates that, although rulemaking is often (but not uncontroversially) described as a process “ossified” by an overabundance of procedural requirements, there is still ample latitude for agencies to engage in procedural politicking. Potter examines three toolboxes agencies use for this purpose: writing, consultation, and timing. Her findings are interesting and important. In this post, however, I’ll suggest that her book also offers some (perhaps unintended) insight into how a legal regime may—or may not—create the conditions necessary for empirical study of the operation of government institutions.

Comments

Invited commentary on Rachel Augustine Potter, BENDING THE RULES: PROCEDURAL POLITICKING IN THE BUREAUCRACY (2019).

Link to Full Text

Share

COinS