Strategic avoidance and rulemaking procedures

Peter Bils, Robert J. Carroll, Lawrence S. Rothenberg

Research output: Contribution to journalArticlepeer-review


Informal, ‘notice-and-comment’, rulemaking is the prototypical mechanism employed by US regulators. However, agencies frequently claim their actions exempt from the process, and courts typically agree. Agencies thus face an important strategic choice between informal rulemaking and avoidance. To study this choice, we analyze a model of rulemaking with exemption and empirically analyze agency avoidance. Our model implies that more biased agencies engage in less avoidance, as they face more skepticism from the courts and, thus, require support from group comments to have their rules upheld. Empirically, we find support for this prediction. As for policy implications, we show it is more beneficial to allow exemptions when the agency is more biased.

Original languageEnglish (US)
Pages (from-to)156-185
Number of pages30
JournalJournal of Theoretical Politics
Issue number2
Early online dateMar 24 2024
StatePublished - Apr 2024


  • Administrative Procedures Act
  • agency oversight
  • bureaucratic policymaking
  • good cause exemption
  • notice-and-comment rulemaking

ASJC Scopus subject areas

  • Sociology and Political Science


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