Donald Kochan has set forth a concise and persuasive account of congressional delegation of broad swaths of lawmaking authority to administrative agencies, which may be why his article has attracted such attention from the usual suspects. Kochan is, as so many are, pessimistic in his conclusions: short of a deus ex machina like a revivified […]
Author Archives: Guest Blogger
Rethinking Admin Law—A Progressive Agenda for Regulatory Reform, by Debra Perlin
The American Constitution Society is pleased to release Rethinking Admin Law: From APA to Z highlighting ideas from leading administrative law scholars and practitioners addressing what an affirmative progressive agenda for regulatory reform might look like. In the wake of decades of increased corporate influence in politics, regulatory reform has become virtually synonymous with deregulation. But […]
Climate Change is the Most Important Issue in Administrative Law, by Kathryn E. Kovacs
Our climate is changing, and humans are contributing to that development. On those points there can no longer be any reasonable debate. The extent of the problem and what to do about it, however, are ripe for discussion. Indeed, those questions are the most pressing questions of our day and perhaps the most pressing questions […]
Presidential Administration via Litigation, By Bijal Shah
This spring, I had the pleasure of participating in the Yale Journal on Regulation conference on “Regulatory Change & the Trump Administrative.” I was honored to be a speaker on the “Changes in Administrative Law in the Executive Branch” panel, along with Professors Gillian Metzger (Columbia) and Bridget Dooling (George Washington). Our moderator was Professor Nicholas […]
Ninth Circuit Review-Reviewed: CFPB Survives Another Separation of Powers Challenge, But Agency Isn’t Yet in the Clear, by William Yeatman
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Let’s get straight to last month’s controversies. The Elusiveness of Plain Meaning in Organic Statutes Outside of date-certain deadlines, are enabling acts ever truly plain? This week’s lead case presents an instance where […]
A Concluding Post on Federal Agency Guidance and the Power to Bind, by Nicholas R. Parrillo
Over the last few weeks, Notice and Comment has hosted a symposium with contributions from fourteen scholars on the binding power of federal agency guidance, using as a focal point my article “Federal Agency Guidance and the Power to Bind,” recently published in the Yale Journal on Regulation. The contributions, many of which draw from […]
Soft Law Often Should be Permitted to Bind Agency Staff, by Peter L. Strauss
For an event honoring the scholarship of Professor Bill Funk, another contributor to this on-line symposium, I have written an essay, Domesticating Guidance, summarizing my thinking about the use and misuse of agency guidance documents. No one doubts that that the soft law of guidance documents, which do not require notice and comment under the […]
A Belated Contribution to the Symposium on Federal Agency Guidance and the Power to Bind, by Richard J. Pierce, Jr.
I have learned a lot from the articles in which Nick Parrillo summarized and built on the valuable empirical study of guidance documents that he conducted for ACUS and from the many comments on Nick’s work that scholars have published in the Notice and Comment symposium on Nick’s work. I hope to add to that […]
Pursuing Parrillo’s Principled Flexibility, by Kristin E. Hickman
Everyone familiar with the intertwined spheres of administrative law and regulatory practice knows that federal agencies routinely issue informal, subregulatory pronouncements, referred to collectively as “guidance,” articulating their views regarding the law’s requirements. Agency use, and arguable abuse, of guidance to direct the behavior of regulated parties and agency employees is a perennial topic of […]
The Solution to Regulatory Ossification May Be Regulatory Cartilage, by Jamie Conrad
Nick Parrillo’s publications are like Robert Caro’s – so synoptic, and so exhaustively researched, that it’s inconceivable that anyone could do a better job. As a result, it’s a daunting prospect to quibble with any of his conclusions and recommendations – much less to dispute them fundamentally. What’s more, as a practitioner – and one […]