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In Defense Of The Short Cut, Stephen M. Johnson

Articles

Congress frequently gives administrative agencies a choice of several different tools—including legislative rulemaking, nonlegislative rulemaking, and adjudication—to interpret and apply the statutes that they administer. When Congress gives agencies a choice, courts rarely second-guess the agencies’ choice of policymaking tool. Rarely, that is, unless the agency chooses to interpret a statute through nonlegislative rulemaking. ...

Part II of this Article explores the variety of policymaking tools that are available to agencies, the deference generally accorded an agency’s choice of tool, and the reluctance of courts to defer when agencies choose to make policy through nonlegislative rulemaking. Part III explores Franklin’s …