The empirical observation of a four-decades-long trend towards longer and longer federal agency rulemakings laid the foundation for this series of studies and associated law review articles. The second in that series, this work will add necessary data, test important hypotheses, and draw new conclusions to guide policymakers. Any serious observer of the Federal Register recognizes that different sections of a rulemaking serve different purposes. And agencies have historically utilized one section in particular to insulate their rules from judicial vacation or remand – the “concise general statement of basis and purpose.” Thus, this new study will collect and analyze the word count data for this section in isolation, testing for correlations between longer statements and success in the courts. When confronted with the empirical trend of increasing Federal Register pages per rule over time, administrative law scholars invariably pointed to an explanation external to the rulemaking agency—the number of public comments. Legally, agencies must respond to significant comments in the preamble to the final rule, so logic dictates that more comments would lead to more Federal Register pages. Meanwhile in the real world, use of personal computers, access to the internet, and awareness of regulations.gov have all risen in parallel with rules getting longer and have all made commenting on rulemaking easier over time. The empirical picture would thus not be complete without examining the potential connection between the number of comments and the length of a rulemaking.
Nevada Law Journal
Suggested Bluebook Citation
Anthony Moffa, Strength in Numbers (of Words): Empirical Analysis of Preambles and Public Comments, 22 NEV. L.J. 99 (2021).