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Full-Text Articles in Rule of Law
Representative Rulemaking, Jim Rossi, Kevin Stack
Representative Rulemaking, Jim Rossi, Kevin Stack
Vanderbilt Law School Faculty Publications
The dominant form of lawmaking in the United States today-—notice-and-comment rulemaking—-is not a representative process. Notice-and-comment simply invites public participation, leaving the overall balance of engagement with the proposed regulations to the choices of individuals, public interest groups, trade groups, and regulated businesses. The result is a predictable one: In most rulemakings, industry voices dominate, and in many rulemakings, there is no participation by citizens or public interest groups. This representation deficit must be taken seriously. The basic rationales for a notice-and-comment rulemaking process depend upon some level of representation for those affected. The goal of providing the agency with …
The False Promise Of The "New" Nondelegation Doctrine, Jim Rossi, Mark Seidenfeld
The False Promise Of The "New" Nondelegation Doctrine, Jim Rossi, Mark Seidenfeld
Vanderbilt Law School Faculty Publications
This essay responds to claims that the "new" nondelegation doctrine, applied by D.C. Circuit Judge Stephen Williams in American Trucking Association, Inc. v. EPA, 175 F.3d 1027 (D.C. Cir. 1999), advances the rule of law. The Supreme Court has generally favored ex post over ex ante mechanisms for control of administrative action. Currently, for instance, courts apply arbitrary and capricious review, as a way to control agency decision making ex post. But the rule of law benefits of the "new" nondelegation doctrine are no greater than those delivered by the current means of ex post controls. The rule of law …