About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

85 Geo. Wash. L. Rev. Arguendo 1 (2017)

handle is hein.journals/gwargu85 and id is 1 raw text is: 








                  How the Supreme Court

              Derailed Formal Rulemaking


                                Kent Barnett*

                                ABSTRACT
        Based on archival research, this Essay explores the untold story of how the
    Supreme Court in the 1970s largely ended 'formal trial-like rulemaking by
    federal agencies in two railway cases. In the first, nearly forgotten decision,
    United States v. Allegheny-Ludlum Steel Corp., the Court held sua sponte that an
    agency was not required to use formal rulemaking, despite its significant
    historical provenance. That unpersuasive decision all but decided the second,
    better-known decision, United States v. Florida East Coast Railway, the following
    term. In response to both decisions, agencies abandoned formal rulemaking one
    of only four broad categories of agency action and policymakers and scholars
    largely ceased debating its virtues. Findings from the Justices'personalpapers
    including that the Court identified the issue only after oral argument and
    appeared deeply uninterested in Allegheny-Ludlum should revive the long-
    muted debate among scholars and Congress over formal rulemaking's utility and
    the continued vitality of the Court's railway decisions.

                               INTRODUCTION

     Formal on the record rulemaking is as curious to contemporary
minds as it was commonplace to the modem administrative state's
founders. It refers to federal agencies' promulgation of regulations under
the Administrative Procedure Act (APA)1 based on a closed record from
a trial-like hearing with witnesses, cross-examination, an administrative
law judge (AL) or other hearing officer, and findings of fact and law.2 It
contrasts with more familiar, informal notice-and-comment rulemaking,
which has neither trial-like procedure, closed record, nor specific findings
of fact or law.3 In two railroad cases decided in the early 1970s, the
Supreme Court allowed formal rulemaking to fall largely into desuetude
with little fanfare.4 Given formal rulemaking's then-growing reputation for
furthering administrative lethargy and interest-group capture, few lamented

     * Associate Professor, University of Georgia School of Law. I very much appreciate
helpful comments and materials from Gary Lawson, Ron Levin, Aaron Nielson, and Miriam
Seifter. I am also very grateful to the editors of The George Washington Law Review for
their careful attention to my Essay.
     1 Administrative Procedure Act, Pub. L. No. 79-404, 60 Stat. 237 (codified as
amended in scattered sections of 5 U.S.C. (2012)).
     2 See generally 5 U.S.C. §§ 553, 556-57 (2012) (outlining the administrative
rulemaking process).
     3 See id. § 553.
     4 See infra notes 10, 17 and accompanying text.

Jan. 2017 Vol. 85

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 3,000 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most