Rulemaking: How Government Agencies Write Law and Make Policy.

Government bureaucracies respond to perceived transgressions in one of three ways. With regard to trivial abuses, agencies will usually negotiate a preferred pattern of behavior which suits the interests of the relevant parties. In response to flagrant abuses, public bureaucracies are inclined to employ adjudication, thereby utilizing a single party as an example for others who would contemplate similar transgressions. In contrast to these two responses, wide-spread abuse tends to evoke regulation or rulemaking, thereby allowing the bureaucracy to establish binding law over the jurisdiction carved out by the rule. Regulation, unlike either adjudication or negotiation, constitutes "the authoritative allocation of values" by a non-elected bureaucracy - an act which Max Weber inextricably associates with political sovereignty.

It is the undeniable fact that public bureaucracies act like legislative bodies that makes the subject of rulemaking important with regard to normative theories of democracy. Cornelius M. Kerwin provides a discussion of rulemaking which is lucid with regard to the profound dimensions of the topic and rather pedestrian with regard to the obvious elements. In this way, Kerwin's book serves as both a first-rate classroom text and a provocative research monograph.

Professor Kerwin offers two heuristic devices which facilitate understanding the institutions and processes of rulemaking. On a macro-level, an eleven-stage model details how rulemaking fits into the overall process of governance. Kerwin enhances the usefulness of this scheme by also explicating exceptions to the model. On a micro-level, the author presents a model of the internal process of rulemaking which reveals the clockwork of agency decisionmaking. While these two depictions are useful, they are standard fare in a book of this genre, thus, they do not serve to distinguish this manuscript above other reliable classroom texts on the subject (See for example, James O'Reilly, Administrative Rulemaking, 1983; or William West, Administrative Rulemaking, 1985).

With regard to politics, however, Professor Kerwin uses a distinctively novel logical structure. While the conventional course is to utilize a discussion of external policies as a segue to internal politics, this book takes just the opposite tack. Kerwin presents the internal politics of rulemaking as essentially involving control or manipulation of five types of information: legal, policy, technical, managerial, and political (external). This lays the foundation for a later disquisition of external political factors that focuses, to a large extent, on oversight and principal-agent theory. But, the cited principal-agent literature is dated, so it is limited to only Congressional influence.

The dialogue could be improved by including more recent work which examines principal-agent theory in the presidential realm (Wood, American Journal of Political Science, 1990). Also, the text provides a prosaic treatment of participation in rulemaking by interest groups, but completely ignores the notion of latent participation via representative bureaucracy. The 1990s have seen a renewed interest in how the composition of an agency affects the behavior of that agency (See among others, Meier and Stewart, The Politics of Hispanic Education, 1991). This point is even more pertinent, given Kerwin's implicit argument that rulemaking has undergone internal democratization since the 1960s.

Professor Kerwin attempts to move the dialect of rulemaking toward the mainstream policy implementation literature. He specifies and develops three dimensions of agency rules first put forth by Colin Diver: transparency, congruency, and simplicity. Kerwin's treatment of these three concepts is very congruous with discussions of the written mandate usually associated with second-generation implementation models (See for example, Mazmanian and Sabatier, Implementation and Public Policy, 1983). While kerwin provides only a cursory examination of the relationship between rulemaking and implementation, he does provide the foundation stones for a marriage of the two subjects.

Finally, for empirical social scientists, Professor Kerwin frames a fundamental paradox of modern rulemaking. He presents a textual analysis of the definition of rulemaking provided in the Administrative Procedure Act of 1946. In doing so, he demonstrates that the domain of administrative rulemaking is practically unbounded (or "uncanalized," if one borrows Justice Cardozo's caveat). Kerwin then follows his textual analysis with the contention that the nature of rulemaking underwent fundamental change during the Reagan regime and presents ample evidence to demonstrate that as the total number of rules decreased during the 1980s the substance of any particular rule tended to diminish. Essentially this means that even as bureaucracies assert a legitimate governmental interest over an ever-widening range of private sector activities, the scope of any particular mandate tends to shrink. One can glean from several of Professor Kerwin's arguments throughout the text that diminishing the scope of a rule serves to reduce the political contentiousness of the rule. But the text does not satisfactorily address how it is possible, or what it means, for the totality to grow larger while the amalgam of separable components grows smaller. But then again, if it did, what would be left for the rest of us to do?

John J. Hindera
Texas Tech University

Return to the index.