Abandoning Administrative Common Law in Mortgage Bankers

Boston University Law Review Annex, Vol. 95, No. 1, 2015

8 Pages Posted: 24 Jan 2015

Date Written: January 23, 2015

Abstract

Perez v. Mortgage Bankers Association presents the Supreme Court with the opportunity to eliminate a rule of administrative common law that conflicts with the Administrative Procedure Act (“APA”). When Congress enacted the APA, it deliberately chose to exempt interpretive rules from the Act’s notice-and-comment requirements. The D.C. Circuit nonetheless invalidated a Department of Labor interpretive rule because it did not undergo notice and comment. The Supreme Court should respect the public deliberation reflected in the APA’s text and eliminate the D.C. Circuit’s administrative common law. Mortgage Bankers also raises questions about another doctrine of administrative common law: the Supreme Court doctrine of deferring to agency interpretations of their own regulations. But the briefing does not address whether that longstanding doctrine conflicts with the APA and whether it has received Congress’s imprimatur. The Court need not and should not address that doctrine until those questions are answered.

Keywords: administrative law, common law, Mortgage Bankers

Suggested Citation

Kovacs, Kathryn E., Abandoning Administrative Common Law in Mortgage Bankers (January 23, 2015). Boston University Law Review Annex, Vol. 95, No. 1, 2015, Available at SSRN: https://ssrn.com/abstract=2554560

Kathryn E. Kovacs (Contact Author)

Rutgers Law School ( email )

Camden, NJ
United States

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