Legislative Rules Revisited

Abstract

The distinction between legislative rules and nonlegislative rules is one of the most confusing in administrative law. Yet, it also critical for understanding not just when agencies must use procedural formality to issue policy judgments, but also the subsequent treatment of those judgments by courts. This Essay explores the legislative rule conundrum through the lens of Judge Richard A. Posner's opinion in Hoctor v United States Department of Agriculture. To describe the legislative rule debate is to conjure doctrinal phantoms, circular analytics, and fundamental disagreement even about correct vocabulary. Hoctor illustrates many of the fault lines in existing doctrine and suggests a novel if ultimately unsatisfying approach to legislative rules doctrine that turns on characterizing the form, content, and relationship between the new rule and existing law. This Essay suggests instead that much of the legislative rule doctrine might well be jettisoned, avoiding confusion and uncertainty about when agencies must use formal procedures to issue policy.

Keywords: Richard A. Posner, Richard Posner