Administrative Law Tools for More Adaptive and Responsive Regulation

The ossification of regulatory rulemaking is one of the most substantial obstacles to the law’s ability to keep pace with both emerging and evolving technologies. This chapter explores four administrative law tools that have been used at different times in U.S. and international history to attempt to hasten the regulatory process, and analyzes their potential utility as effective methods to help close the gap between regulation and technology. Three of the four tools discussed are different types of rulemaking procedures – negotiated rulemaking, direct final rulemaking and online or e-rulemaking – each one designed to streamline a specific aspect of the rulemaking process. The remaining administrative tool discussed is sunset provisions or temporary legislation designed to prevent outdated legislation from continuing in perpetuity by allowing legislation to naturally expire in the absence of affirmative re-authorization. By carefully analyzing past uses of the various techniques their strengths and weaknesses are revealed, allowing their potential benefits and most appropriate applications to be better identified.