The Dilemma of Nonlegislative Rules

David L. Franklin, Legislative Rules, Nonlegislative Rules, and the Perils of the Short Cut, 120 Yale L. J. 277 (2010). Mark Seidenfeld, Substituting Substantive for Procedural Reiew of Guidance Documents (FSU College of Law, Public Law Research Paper No. 479, 2011), available at SSRN. William Funk So-called nonlegislative rules, rules adopted as interpretative rules or statements of policy without notice and comment, have posed problems for courts and scholars for a number of years. In addition to myself,1 in recent years professors Robert Anthony,2 Peter Strauss,3 Elizabeth Magill,4 Nina Mendelson,5 Donald Elliott,6 Jacob Gersen,7 Ronald Levin,8 and John Manning9 have all attempted to bring coherence to the questions raised by nonlegislative rules. Everyone agrees that agencies must be able to issue certain interpretations and policy statements, generically guidances, without having to follow the notice-and-comment process applicable to legislative rules. On the other hand, everyone also agrees that agencies can abuse the ability to avoid notice and comment rulemaking through invocation of the exceptions for "interpretative rules" and "general statements of policy." How to police the line between those rules requiring notice and comment and those that do not is what has stymied courts and commentators. Now there are two more attempts in this regard, and while both are worthwhile additions to the field, Professor Seidenfeld seems to this author to come closest to hitting the mark. Continue reading "The Dilemma of Nonlegislative Rules"

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