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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*

        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.


     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

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