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Since the rise of the modern administrative state we have seen a demonstrable trend towards lengthier regulations. However, popular critiques of the administrative state that focus on the overall size of the Federal Register are misguided. They rest on the premise that more, and longer, regulations unduly burden industry and the economy in general. However, movement towards lengthier and more detailed regulations could be rational and largely unproblematic. This study tests two potential rational explanations for the trend towards longer regulations: dubbed (1) “the insulation hypothesis” and (2) “the socially beneficial hypothesis.” Each of these explanations embodies a theoretically rational decision. First, the insulation hypothesis rests on the idea that it would make sense for policy-makers to include more detailed legal and scientific support in new regulations, and thereby increase their length relative to previous regulations, if the addition-al detail provided more insulation from judicial review. Second, the socially beneficial hypothesis rests on the idea that devoting relatively more time and re-sources to each new rule would be appropriate if longer, newer regulations produced more net social benefits than older, shorter ones. The empirical analysis set forth in this article combines data from a number of publicly available sources to test these hypotheses. The results, confirming “the socially beneficial hypothesis,” add to the canon of empirical analysis of administrative law, building on the work of Cass Sunstein, Cary Coglianese, and others. Recognizing an overly burdensome regulatory state, an undoubtedly worthwhile and vital check in a democratic society, requires more than simply counting the pages of regulations. The results of this study should put some minds at ease, at least with respect to EPA regulations; they should also help better direct our scrutiny in the future.

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Nevada Law Journal



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