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60 Duke L.J. 1841 (2010-2011)
Agency Threats

handle is hein.journals/duklr60 and id is 1857 raw text is: Essay

There are three main ways in which agencies regulate:
rulemaking; adjudication; and informal tools of guidance, also called
nonlegislative or interpretative rules.' Over the last two decades,
agencies have increasingly favored the use of the last of these three,
which can include statements of best practices, interpretative guides,
private warning letters, and press releases.2
Scholars are hardly unaware of this trend. In a series of papers,
writers have explored the use of informal regulation as it affects the
relationship between agencies and the federal courts, asking when
nonlegislative rules can be challenged as unenforceable for want of
process.? This Essay concerns a different question, centered on the
Copyright @ 2011 by Tim Wu.
t Senior Advisor, Federal Trade Commission; Professor, Columbia Law School. The
views expressed are my own and not the views of the Commission or any particular
Commissioner. I thank Peter Strauss, Phil Weiser, James Speta, Christopher Yoo, and various
members of the Duke Law faculty for feedback on this idea, along with Judd Schlossberg for
timely research assistance.
1. See 5 U.S.C. §§ 553-554 (2006).
2. The turn to informal methods has been well documented. See, e.g., Thomas McGarity,
Some Thoughts on Deossifying the Rulemaking Process, 41 DUKE L.J. 1385, 1393 (1992)
(noting the increasing tendency of agencies to engage in 'nonrule rulemaking' through
relatively less formal devices such as policy statements, interpretative rules, manuals, and other
informal devices); David Zaring, Best Practices, 81 N.Y.U. L. REV. 294, 295 (2006) (providing
quantitative evidence of a rise in the use of best practices as a means of informal regulation).
3. See, e.g., David L. Franklin, Legislative Rules, Nonlegislative Rules, and the Perils of the
Short Cut, 120 YALE L.J. 276, 279-80 (2010) (defending judicial refusal to follow scholars'
suggestions about how to distinguish between legislative and nonlegislative rules); Jacob E.
Gersen, Legislative Rules Revisited, 74 U. CHI. L. REV. 1705, 1719 (2007) (Rather than asking
whether a rule is legislative to answer whether notice and comment procedures should have
been used, courts should simply ask whether notice and comment procedures were used. If they
were, the rule should be deemed legislative and binding if otherwise lawful. If they were not, the

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