Beck responds to Pierce on systemic bias in rulemaking

On his Federal Regulations Advisor blog, Leland E. Beck responds to Richard J. Pierce's post on RegBlog: "Opinion: Regulatory Analysis, Public Comments, and Policy Decisions". Opening paragraph:

A crop of comments have sprung up recently on whether regulatory analyses in rulemaking – economic, scientific, and otherwise –support a specific point of view.  At the same time, questions about whether public comments inherently bias a policy decision in a specific direction have arisen.  At bottom, information is the currency of the regulatory process – sticking one’s regulatory head in the sand, ostrich-like, is not an acceptable response.  If good analysis and public scrutiny informs a regulatory decision, then it is a better decision.  If that decision is not politically palatable, then policy makers need to go back to their drawing boards.

Mr. Beck suggests that what appears to be a bias towards regulated entities in notice-and-comment rulemaking actually reflects the better quality of information furnished by supporters of the regulated entities and the failure of agencies proposing rules to do their homework. I suspect that both positions are partly correct but that there are even more reasons for the results of such rulemaking:

• Perceived substantive due process constraints on regulation (whether or not Lochner is back there appears to be a perception among lawyers—including lawyers who draft proposed regulations for the government—that some kinds of regulation Just. Aren't. Done;
• A sort of common understanding among lawyers in an industry irrespective of whether they work for regulators or regulatees, less venial (but more common) than actual agency capture;
• Adoption by harried government regulators of elegant arguments made by better writers—who are more likely to work for those who can afford them.

You see these same pressures in appellate litigation, where clerks come from the same population of law review editors at top schools as "biglaw" associates who are writing for better heeled parties. I'm not judging here, it just is. I'd love to see some anthropological studies on this. EMM