On Pressing McNollgast to the Limits: The Problem of Regulatory Costs

Recent scholarship by Mathew D. McCubbins, Roger G. Noll, and Barry R. Weingast,' and by Arthur Lupia and McCubbins,2 sheds new light on an important administrative law subject: the rationale for and the utility of the procedures that an administrative agency must follow in order to adopt rules. According to the Administrative Procedure Act ("APA"), an agency must give public notice of a proposed rule and allow any interested person to provide written comments on that rule.3 The agency must also supply a concise statement of the basis and purpose of a rule when it is adopted.4 A final rule must be published in the Federal Register,5 and its effective date must be delayed until thirty days after publication.6 What purposes does the notice-and-comment procedure serve? While the legislative history of the APA is unilluminating, courts and commentators have identified two significant purposes. The first is utilitarian, and the second is drawn from political theory. The utilitarian purpose is that the notice-and-comment procedure produces better rules than a regime lacking such procedure. When evaluated by the conventional utilitarian calculus,7 this congressional insight seems correct. The