How Agencies Choose Whether to Enforce the Law: A Preliminary Investigation

32 Pages Posted: 27 Jun 2018 Last revised: 10 Feb 2021

See all articles by Aaron L. Nielson

Aaron L. Nielson

Brigham Young University - J. Reuben Clark Law School

Date Written: June 15, 2018

Abstract

This Article has three purposes. First, drawing on interviews and survey data, it offers a preliminary real-world look into how a number of agencies choose whether to enforce the law in the context of waivers, exemptions, and prosecutorial discretion. The evidence suggests that nonenforcement is heterogeneous across numerous dimensions—including who is involved in the process, the steps the agency must take to make a nonenforcement decision, the scope of nonenforcement, and the potential for public and judicial scrutiny of the agency’s decision. Second, this Article begins to sketch a taxonomy of nonenforcement. Although nonenforcement is often treated as a unitary concept, in fact it comes in many flavors, some of which are more dangerous than others. Finally, building on this taxonomy, this Article urges safeguards to prevent nonenforcement’s abuse. Most significantly, nonenforcement should be rare and requests for it should serve as a signal that retrospective review may be in order.

Keywords: administrative law, what's new in administrative law, enforcement decisions, prosecutorial discretion

JEL Classification: K23

Suggested Citation

Nielson, Aaron, How Agencies Choose Whether to Enforce the Law: A Preliminary Investigation (June 15, 2018). 93 Notre Dame Law Review 1517 (2018), BYU Law Research Paper No. 18-06, Available at SSRN: https://ssrn.com/abstract=3197248

Aaron Nielson (Contact Author)

Brigham Young University - J. Reuben Clark Law School ( email )

430 JRCB
Brigham Young University
Provo, UT 84602
United States

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