Response or Comment
The two papers we have before us tell both descriptive and normative stories about current issues of rulemaking. Each suggests, in its field of attention, pressures that operate to increase proceduralization and agency responses to those pressures, as well as an attitude toward these developments. In rulemaking, as in other activities, discretion and order are in constant tension; one might find in that tension the very engine that makes the processes of public law go. Like the studies that assisted the move away from formal rulemaking, and the perceptions underlying the Supreme Court's Vermont Yankee decision, which quieted the judicial development of hybrid rulemaking, the descriptions here suggest that proceduralization may be perversely encouraging governmental lawlessness; as agencies struggle to meet public and political expectations about their responsibilities with constrained resources, heightened procedural responsibilities here encourage the struggle to escape there, or reduce the extent to which government can afford to tell the public how it means to structure the discretion with which it has been vested. The developments they recount, on the judicial side at least, are the product of case-by-case judicial accretion rather than of systematic thought about the overall activity of "rulemaking" – thought such as might only rarely be expected to occur judicially. The juxtaposition of these two papers affords a useful occasion to attempt an overview of the whole spectrum of activity that can be described in Administrative Procedure Act (APA) terms as "rulemaking."
Peter L. Strauss,
The Rulemaking Continuum,
Duke L. J.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/431