Ossification Revisited: Does Arbitrary and Capricious Review Significantly Interfere With Agency Ability to Achieve Regulatory Goals Through Informal Rulemaking?

Authors

William S. Jordan III, University of Akron

Document Type

Article

Publication Date

2000

Abstract

This article revisits the longstanding debate over the "ossification" of informal rulemaking, the theory that judicial review—especially under the "arbitrary and capricious" standard—has made rulemaking so procedurally burdensome that it impedes agencies from efficiently achieving their regulatory objectives. William S. Jordan III critically evaluates both empirical data and doctrinal developments to assess whether such review genuinely causes delay or obstruction in agency rulemaking. He finds that while courts do impose significant analytical and procedural expectations, the impact may be less severe than ossification critics claim. Jordan argues that judicial scrutiny can enhance the quality of rulemaking by ensuring reasoned decision-making and public accountability, though it may also dissuade agencies from pursuing complex rules. The article seeks a balanced view that acknowledges the tension between judicial oversight and regulatory agility.

Publication Title

Northwestern University Law Review

Volume

94

First Page

393

Recommended Citation

Jordan III, William S., "Ossification Revisited: Does Arbitrary and Capricious Review Significantly Interfere With Agency Ability to Achieve Regulatory Goals Through Informal Rulemaking?" (2000). Akron Law Faculty Publications. 454.
https://ideaexchange.uakron.edu/ua_law_publications/454