Not Dead Yet
21 Pages Posted: 18 Sep 2016
Date Written: 2008
In sum, the topic on which we were invited to comment - federal rulemaking - comes surrounded with a great deal of negativity. As one who has been involved for over a decade in the persisting effort to accomplish things through federal rulemaking, I come before you with a simple message: it's not dead yet. And I think it's not about to die. To support that view, I want to make four points. First, the Big Bang of the 1930s was unprecedented, and we will not see its like again. Second, much of the recent pessimism has resulted from academic dislike of certain constraints introduced in the last quarter century on the central Liberal Ethos of the 1930s revolution; and the result is often a case of the quest for the perfect drowning out the acceptance of the good. Third, the federal rulemaking activity has important structural advantages that will not go away. Finally, there is evidence-particularly the recent E-Discovery rulemaking episode-that shows the federal apparatus is not dead, either as an innovator or as a leader.
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