Administrative Rulemaking: An Old and Emerging Literature

Rulemaking is the most important way in which bureaucracy creates policy. In some respects, it rivals the even legislative process in its significance as a form of governmental output. Although rulemaking was long overlooked in the policy sciences, students of government and public administration have begun to redress this neglect as part of a more general interest in formal institutions. In so doing, they have built on a long-standing interest in the subject among students of administrative law. This report offers a brief overview and evaluation of research on the administrative and political issues surrounding rulemaking. Like institutional analysis generally, some of this literature is empirical and descriptive, some of it is normative and prescriptive, and much of it combines these two types of concerns. Far from being comprehensive, the following discussion seeks to identify the central issues that define the analysis rulemaking, as well as issues that deserve more attention than they have received. The most fundamental questions about rulemaking have to do with its implications as an alternative form of policy implementation. Once a popular topic, this has received relatively little attention since the use of rulemaking expanded dramatically in the 1970s. Most recent scholarship has focused instead on how rules are developed. Of particular interest have been the determinants and effects of the formal institutions that constrain the rulemaking process. These constraints have become more numerous and demanding in direct relation to the growth in the popularity of rule-making itself. Some studies have focused on the political forces or doctrines that explain controls over the exercise of delegated legislative authority. Others have evaluated the effects of structural choices in terms of values such as effectiveness, efficiency, and responsiveness. Much of the literature on rulemaking is excellent, and an extension of its trajectory promises to refine our understanding of key theoretical and applied issues in public administration. At the same time, scholars have slighted fundamental dimensions of rulemaking that are critical to an evaluation of its character. By focusing primarily on formal, institutional arrangements, existing work on rulemaking has overlooked the informal process through which the most important decisions are often made. Another limitation of the literature that cuts across many of the issues discussed in this report is its inattention to context. The fact that rules are issued for very different purposes and within different technical and political environments has profound implications for both descriptive and prescriptive analysis.