Aaron L. Nielson
86 Geo. Wash. L. Rev. 1209
One of the dirtiest words in administrative law is “ossification”—the term used for the notion that procedural requirements force agencies to spend a long time on rulemakings. Ossification, however, is misunderstood. Even leaving aside the other benefits of procedures, delay itself can be valuable. For instance, procedural delay can operate as a credible commitment mechanism against change, thereby encouraging increased private participation in the regulatory scheme at a lower cost for the agency. Moreover, for the most significant rules, delay gives the public time to respond. When law changes too quickly, public confidence in it can decrease. To the extent that agencies benefit from public confidence, procedural delay thus can be valuable to the agency. At the same time, of course, delay is not always useful, and in any event, there can be too much of a good thing. Not all schemes need a credible commitment mechanism, and sometimes delay undermines rather than enhances public confidence.
The challenge, therefore, is not to eliminate ossification. Rather, the goal should be to maximize the benefits of delay while minimizing its costs. Hence, when evaluating proposals for reform, it is not enough to simply say “ossification.” Instead, one must search for the optimal amount of ossification. This Article begins to sketch what that more complete analysis might look like.
