The Pacific Legal Foundation (where I work) has issued a call for papers for its upcoming research roundtable on “Rulemaking by Adjudication.” The deadline for proposal submissions is January 10th. Here is an excerpt from the description (full version available at the PLF website):

The recent Supreme Court decision in Loper Bright v. Raimondo overturned the long-standing Chevron deference doctrine. This means that courts may no longer defer to agencies’ interpretations when a statute is unclear but must instead determine independently what the law says.

Now that executive agencies face stricter limits on rulemaking, they may seek alternative routes to create rules. One avenue is regulation by adjudication, even if SEC v. Jarkesy limits administrative adjudication of certain types of claims. The Supreme Court’s 1947 decision in SEC v. Chenery Corp. (“Chenery II”) is generally taken as blanket authorization for agencies to make law through either adjudication or rulemaking, if their organic statutes permit both modes.

But rulemaking through adjudication poses its own problems and has drawn criticism from scholars, attorneys, and experts. Rulemaking is general (applies to everyone) and prospective (applies only to future conduct). Adjudication is particular (involves only a single party or small number of parties in a concrete dispute with the agency) and retrospective (applies to past conduct). Because adjudication is particular, only a narrow part of the interests affected by a rule are before the agency. In other words, the agency does not receive the type of robust feedback that it typically gets through notice and comment rulemaking, even though it is creating rules that will apply broadly. Critics also charge that the retroactivity of rulemaking by adjudication is unfair and may even violate due process.

This research roundtable seeks to expand the literature available on rulemaking through adjudication and to inform future litigation brought in this area.

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Proposals should be submitted by January 10, 2025, to Alison Somin at asomin@pacificlegal.org. Early proposal submission is encouraged, as proposals will be reviewed on a rolling basis, and approvals will allow authors to begin work early. Submissions after January 10 may be accepted if space at the roundtable and budget permit.