de Figueiredo, John M. and Stiglitz, Edward, Democratic Rulemaking (July 20, 2015). Oxford Handbook of Law and Economics, Forthcoming; Cornell Legal Studies Research Paper No. 15-33. Available for download at SSRN: http://ssrn.com/abstract=2658283

“To what extent is agency rulemaking democratic? This paper examines the soundness and empirical support for the leading theories that purport to endow the administrative state with democratic legitimacy. We study the theories in light of two normative benchmarks: a “democratic” benchmark based on voter preferences, and a “republican” benchmark based on the preferences of elected representatives. We conclude that all of the proposed theories lack empirical support and many have substantial conceptual flaws; we point to directions for possible future research.”