Notwithstanding that only a few agencies use regulatory negotiation¹ for a tiny minority of rules, the process attracts a remarkable amount of scholarly attention. While proponents claim that negotiation improves rule quality, reduces transaction costs, and increases legitimacy, critics contend that the process fails to deliver its purported benefits and abrogates an agency's responsibility to execute its delegated functions. Some commentators have gone so far as to argue that consensus-based policymaking of this sort is fundamentally undemocratic.²

To date, these debates have remained largely theoretical. What little empirical evidence exists consists mostly of case studies of particular reg negs, with no comparison to conventional rulemaking. The examples tend to focus, moreover, on narrow questions, such as whether reg neg reduces rulemaking time and cuts costs. Only one empirical study has so far compared conventional and negotiated rules,³ but it focuses on just two aspects of the process—time and litigation rates—and its methodology has been controversial.⁴ Thus, the majority of claims advanced in the debate over negotiated versus conventional rulemaking remain largely untested, and policymakers still lack guidance on whether and when to use one or the other approach.