The Puzzle of Private Rulemaking: Expertise, Flexibility, and Blame Avoidance in U.S. Regulation

Authors


David L. Weimer is a professor of political science and public affairs at the University of Wisconsin–Madison. In addition to his long-standing interest in policy craft, his current research focuses on the areas of health and environmental policy. He currently serves as president of the Association for Public Policy Analysis and Management. E-mail: weimer@lafollette.wisc.edu.

Abstract

The standard federal regulatory process in the United States involves notice and comment by government bureaus. This traditional agency model of public rulemaking faces difficulties in taking full advantage of the expertise of stakeholders, and it has been criticized as being slow and inflexible; therefore, it is not surprising that alternative institutional forms involving the delegation of rulemaking to stakeholders have appeared. Yet it is surprising that private rulemaking has been used to allocate valuable goods such as transplant organs. Why is private rulemaking used as an allocative institution of governance? The answer recognizes the advantages it offers in certain rapidly changing circumstances in which essential expertise inheres in the stakeholders, as well as the asymmetric political rewards involved in the allocation of highly valued goods, which create incentives for politicians to avoid blame by delegating substantive rulemaking authority to nongovernmental organizations.

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