Information & Contestation: A Formal Model of Notice and Comment

We develop a formal model of notice and comment rulemaking. An agency investigates a state of the world with some effort of its choosing, then proposes a policy and may or may not reveal its information about the state. A group, which is biased toward one of the agency’s possible choices, then investigates the state as well, and may or may not reveal its information. A reviewing court may uphold or reverse the agency’s policy, depending on the proposal made and information revealed. The analysis focuses in particular on the effect of judicial review on agency investigations in advance of proposing a rule, and on the content of the agency’s policy proposal. We show that it is socially optimal for the court’s review posture to be conditioned on the agency’s policy choice as well as the quality of the record it assembles, and it may be optimal for courts to be deferential to agencies even with weak evidence substantiating their policy choice. Work in Progress. Comments and complaints very welcome. ∗We thanks Gary Miller for helpful comments on this project. As usual, the authors are uniquely responsible for all errors of either omission or commission. Charles & Louise Travers Department of Political Science, University of California, Berkeley. Email: [email protected]. Department of Political Science and Center for Political Economy, Washington University in Saint Louis. Email: [email protected].