Category Archives: Symposium on Federal Agency Guidance and the Power to Bind

Soft Law Often Should be Permitted to Bind Agency Staff, by Peter L. Strauss

by Guest Blogger — Tuesday, May 14, 2019

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 […]

Pursuing Parrillo’s Principled Flexibility, by Kristin E. Hickman

by Guest Blogger — Friday, May 10, 2019

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

by Guest Blogger — Friday, May 10, 2019

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 […]

The Binding Effect of Interpretive Rules, by Ronald M. Levin

by Guest Blogger — Thursday, May 9, 2019

Nick Parrillo’s article Federal Agency Guidance and the Power to Bind is a truly admirable study of the realities underlying agencies’ creation and use of guidance documents.  It will doubtless stand as a definitive examination of the practical factors that can cause informal agency pronouncements to exert coercive pressure on private persons, even when those […]

The Role of Guidance Documents in Agency Regulation, by Stuart Shapiro

by Guest Blogger — Thursday, May 9, 2019

The year 2019 may prove to be a landmark one for the question of the proper role of agency guidance documents (or “non-legislative rules”).  Within the next month or two, the Supreme Court will reach a decision on Kisor v. Wilkie where the question of judicial deference to agency’s interpretation of their regulations is at […]

Agency Guidance and the Agency Costs of Compliance, by Sean J. Griffith

by Guest Blogger — Wednesday, May 8, 2019

Inhabitants of the administrative state who are concerned about the rule of law may be comforted by the fact that there are rules about making rules.  The Administrative Procedure Act (“APA”) requires regulatory agencies to expose prospective rules to democratic processes, most notably the notice and comment period, before they become binding.  “Guidance” – regulatory […]

Corporate Integrity Agreements, Agency Speech, and Unmoored Guidance

by Sam Halabi — Tuesday, May 7, 2019

Nicholas Parrillo’s Federal Agency Guidance and the Power to Bind provides an important window into the perspectives of diverse stakeholders on the use, structure, and influence of agency guidance. Parrillo ultimately argues that agencies adopt, and regulated or interested stakeholders internalize, guidance through a complex process that belies simplistic assertions that agencies, more or less, […]