Rethinking Formal Rulemaking

Abstract

Formal rulemaking requires agencies to make policy through a process akin to a trial; it involves cross-examination, burdens of proof, and a bar on ex parte communications. The idea is that formal procedures can help create better substantive policy. This form of rulemaking, however, is almost never used anymore. Instead, informal rulemaking?which is conducted through written comments, with no trial-like procedures?is now essentially the only type of rulemaking used. For more than three decades, scholars have largely rejected formal rulemaking as unduly cumbersome and thus have applauded the shift to informal rulemaking. This article argues that while formal rulemaking may not be appropriate in all instances, it merits experimentation. Upon careful review, many of the arguments against formal rulemaking do not withstand scrutiny.