Document Type
Article
Publication Date
2019
Abstract
For an event honoring the scholarship of Professor Bill Funk, another contributor to this on-line symposium, I have written an essay, Domesticating Guidance, summarizing my thinking about the use and misuse of agency guidance documents. No one doubts that that the soft law of guidance documents, which do not require notice and comment under the APA, should not veer into the hard law of legislative rules, which generally do require that procedure. Unfortunate confusion, though, arises from lower court concerns that purported guidance documents may be “binding in practice” — thus, they reason, functionally, an invalid legislative rule that must be vacated for want of notice and comment.
Disciplines
Administrative Law | Constitutional Law | Law
Recommended Citation
Peter L. Strauss,
Soft Law Often Should be Permitted to Bind Agency Staff,
Yale J. on Reg. Notice & Comment, May 14, 2019
(2019).
Available at:
https://scholarship.law.columbia.edu/faculty_scholarship/4820