The Agency Declaratory Judgment

48 Pages Posted: 20 Apr 2017 Last revised: 31 Jan 2018

Date Written: April 19, 2017

Abstract

This Article identifies and examines an overlooked provision of the Administrative Procedure Act (APA) that extends to administrative agencies a device analogous to the declaratory judgment. This device—the declaratory order—enables agencies to provide case-specific, noncoercive, legally binding advice to regulated entities and the public, thereby reducing regulatory uncertainty and its attendant harms. Recent changes in how the courts interpret the Administrative Procedure Act have made the declaratory order more useful and accessible to agencies, while simultaneously reducing the attractiveness of other forms of nonbinding agency guidance. This Article fits the declaratory order among the various policymaking forms available to agencies and comprehensively analyzes current, limited agency use of the device. It argues that agencies should accept the courts’ invitation to use declaratory orders more frequently and creatively to improve the administration of federal regulatory programs.

Keywords: administrative law, adjudication, Administrative Procedure Act, declaratory orders, choice of policymaking form, procedural discretion, declaratory judgments, guidance

JEL Classification: K20, K23

Suggested Citation

Bremer, Emily S., The Agency Declaratory Judgment (April 19, 2017). 78 Ohio State Law Journal 1169 (2017), Available at SSRN: https://ssrn.com/abstract=2955214

Emily S. Bremer (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States
5746311511 (Phone)

HOME PAGE: http://https://law.nd.edu/directory/emily-bremer/

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