In Defense of Formal Rulemaking

Abstract

For both administrative law amateurs and cognoscenti alike, when one thinks of rulemaking, informal rulemaking, with its notice-and-comment procedures, comes to mind. This association is natural; in modern administrative law, informal rulemaking is ubiquitous. This Article, however, addresses a different type of rulemaking — one that, if not forgotten altogether, is usually brushed aside quickly as an unwanted relic of the past: formal rulemaking. In marked contrast to its informal counterpart, formal rulemaking uses procedures akin to a trial, including hearing officers, pre-trial conferences, burdens of proof and persuasion, proposed findings, cross-examination, and a closed record. Although the APA provides for formal rulemaking, however, the Supreme Court largely put an end to it decades ago in United States v. Florida East Coast Railway Co. There, following the winds of scholarly opinion that had turned against formal rulemaking as unduly cumbersome, the Court held that unless an agency’s organic statute uses magic words like “on the record after opportunity for an agency hearing” no formal rulemaking is required. Because so few statutes use those magic words, formal rulemaking has largely disappeared.

Since Florida East Coast Railway, few have risen to formal rulemaking’s defense. Indeed, no scholar in over thirty years has seriously considered formal rulemaking’s virtues. This Article fills the void. While formal rulemaking’s robust procedural protections admittedly can be a misfit in some contexts, it may be a mistake to categorically dismiss them in all contexts, especially because formal rulemaking has the potential to facilitate better rules of greater legitimacy. In today’s world where a handful of technically complex rules can impose billions of dollars of costs on the nation’s economy, the time has come to ask whether formal rulemaking might yet play a limited but crucial role in the future of administrative law.

Keywords: Rulemaking, administrative law,formal rulemaking, Florida East Coast Railway, What is formal rulemaking, Why use formal rulemaking, Latest scholarship on formal rulemaking, The future of formal rulemaking, On the record

JEL Classification: K23