Hiding in Plain Sight: Timing and Transparency in the Administrative State

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Hiding in Plain Sight: Timing and Transparency in the Administrative State

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Title: Hiding in Plain Sight: Timing and Transparency in the Administrative State
Author: Gersen, Jacob E.; O'Connell, Anne Joesph

Note: Order does not necessarily reflect citation order of authors.

Citation: Jacob Gersen & Anne Joseph O'Connell, Hiding in Plain Sight: Timing and Transparency in the Administrative State, 76 U. Chi. L. Rev. 1157 (2009).
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Abstract: Anecdotal evidence of agencies burying bad news is rife in law and politics. The bureaucracy regularly is accused of announcing controversial policies on holidays and weekends when public attention is elsewhere. We show that this conventional wisdom is wrong, or at least significantly incomplete. The conventional wisdom is riddled with theoretical holes, and there is little systematic empirical evidence to support it. After critiquing the conventional account of agencies hiding bad news, we articulate and defend a revised theory of strategic timing in administrative law. We argue that timing decisions rarely affect the visibility of decisions but can drive up the costs of monitoring and responding for interest groups and legislative coalitions. Agency discretion to choose when to announce policy decisions can even allow agencies to influence which interest groups monitor the regulatory process and therefore whose preferences must be taken into account. We evaluate both the conventional wisdom and our revised theory using twenty-five years of empirical evidence. We then develop the implications for administrative law doctrine and institutional design of the bureaucracy.
Published Version: http://www.law.uchicago.edu/files/file/505-jg-hiding.pdf
Other Sources: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1509026
Terms of Use: This article is made available under the terms and conditions applicable to Open Access Policy Articles, as set forth at http://nrs.harvard.edu/urn-3:HUL.InstRepos:dash.current.terms-of-use#OAP
Citable link to this page: http://nrs.harvard.edu/urn-3:HUL.InstRepos:10913977
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