The Agency Declaratory Judgment

by Emily Bremer — Saturday, Apr. 29, 2017@emilysbremer

For your weekend reading pleasure, I offer my latest article, The Agency Declaratory Judgment, which is now available on SSRN and is forthcoming in the Ohio State Law Journal.  The article examines a useful provision of the APA with which you may be unfamiliar (really!).  That provision is 5 U.S.C. 554(e).  It states that an agency “with like effect as in the case of other orders, and in its sound discretion, may issue a declaratory order to terminate a controversy or remove uncertainty.”

The abstract explains further:

This Article identifies and examines an overlooked provision of the Administrative Procedure Act that extends to administrative agencies a device analogous to the declaratory judgment. This device — the declaratory order — enables agencies to provide case-specific, non-coercive, legally binding advice to regulated entities and the public, thereby reducing regulatory uncertainty and its attendant harms. Recent changes in how the courts interpret the Administrative Procedure Act have made the declaratory order more useful and accessible to agencies while simultaneously reducing the attractiveness of other forms of non-binding agency guidance. This Article fits the declaratory order among the various policymaking forms available to agencies and comprehensively analyzes current, limited agency use of the device. It argues that agencies should accept the courts’ invitation to use declaratory orders more frequently and creatively to improve the administration of federal regulatory programs.

The Article draws heavily from and builds upon an earlier report I prepared for the Administrative Conference of the United States.  On the basis of that report, the Conference adopted Recommendation 2015-3, Declaratory Orders.

Comments on the article and suggestions for improvement are very welcome!

This post is part of the Administrative Law Bridge Series, which highlights terrific scholarship in administrative law and regulation to help bridge the gap between theory and practice in the regulatory state. The Series is further explained here, and all posts in the Series can be found here.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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About Emily Bremer

Emily S. Bremer is an Associate Professor of Law at the University of Notre Dame. Before joining the faculty, Professor Bremer taught at the University of Wyoming College of Law, served as the Research Chief of the Administrative Conference of the United States, worked as an associate in the telecommunications and appellate practice of Wiley Rein LLP, and clerked for Hon. Andrew J. Kleinfeld of the United States Court of Appeals for the Ninth Circuit. Her research focuses on administrative procedure and issues at the intersection of public and private governance, with a particular focus on the use of privately developed technical standards in government regulation.

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