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A Primer on Nonlegislative Rules

27 Pages Posted: 7 Dec 2001  

William Funk

Lewis & Clark Law School

Date Written: September 12, 2001


This article is derived from a panel presentation on interpretive rules at the Midyear Meeting of the Administrative Law and Regulatory Practice Section of the American Bar Association in February 2001. The article provides a description and analysis of the existing "law" regarding nonlegislative rules adopted by federal administrative agencies, that is, intepretative rules and statements of policy as used in the federal administrative procedure act. This description and analysis includes discussion of how courts determine when a rule is legislative or nonlegislative, what deference courts give to nonlegislative rules, and when preenforcement challenges are ripe for judicial review. The article then addresses the presentations of Professors Peter Strauss and Robert Anthony and Mr. Randy May, in which among other things the article suggests certain problems with Professor Strauss's use of the term "publication rules" in place of nonlegislative rules.

Keywords: interpretative rules, nonlegislative rules, administrative law

JEL Classification: K230

Suggested Citation

Funk, William, A Primer on Nonlegislative Rules (September 12, 2001). Available at SSRN: or

William F. Funk (Contact Author)

Lewis & Clark Law School ( email )

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Portland, OR 97219-7799
United States
503-768-6606 (Phone)
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