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 […]

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 […]

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 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 […]

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 […]

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 […]

Regulated entities love guidance when they agree with it or are ambivalent about it. It is valuable information to have. Not surprisingly, however, if they disagree with the substance of the guidance, and the guidance will impose costs of one sort or another on them, they do not like it. They have a choice in […]

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, […]

The worrisome practical effect of guidance is a key concern for administrative law scholars like Robert Anthony, who wrote the first ACUS report on guidance. Scholars have not stopped worrying. A new way to assess guidance is to see how it operates on the ground. That is, does it make real change in the regulated […]

Immigration law can serve as a useful lens to examine broad administrative law principles because the nature of regulation in immigration law is distinctive.  The regulated party is an individual noncitizen.  The regulation includes restrictions on fundamental life decisions such as where one will live and work.   While it is true that no two agencies […]

Nick Parrillo’s article on the binding effect of guidance is brilliant.  It formed the basis for ACUS Recommendation 2017-5 which furnishes best practice suggestions for mitigating the de facto binding effect of guidance. Yet ACUS had to work within the constraints of the APA’s primitive treatment of guidance and the dubious and result-oriented case law […]

 Nicholas Parrillo has written a most fair-minded evaluation of federal agency guidance. He is careful to point out the great benefits guidance provides to agencies, the public and even to regulated entities, in the form of increased consistency and accountability in agency discretion in implementing statutes, as well as increased notice to regulated entities about […]

Terrific news for readers of the Notice & Comment blog! (That is, you.) The Yale Journal on Regulation has organized another on-line symposium. This one focuses on how legally nonbinding guidance documents can potentially have a binding impact in practice, using as a focal point Professor Nicholas Parrillo’s article, Federal Agency Guidance and the Power […]

Federal agency guidance — though essential and ubiquitous — has long been a matter of controversy.  It must be nonbinding as a matter of law, and yet one often hears complaints that it is binding as a matter of practice.  This tension is the subject of the present symposium, in which I’m delighted to participate […]