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Agency Self-Regulation, Elizabeth Magill

All Faculty Scholarship

Discretion is at the center of most accounts of bureaucracy. Legal scholars in particular have called for agency supervisors, such as Congress, the courts, or the President, to tame that agency discretion. Strangely absent from these accounts is a ubiquitous phenomenon: administrative agencies routinely limit their own discretion when no source of authority requires them to do so.

This Article aims to create a category of such "self-regulation" and argue that scholars have been mistaken to ignore it. It first defines the category of self-regulation, including the feature of administrative law that makes the category interesting, which is that courts …