Notice & Comment

Ad Law Reading Room: “Petition Power,” by Erika Lietzan

Today’s Ad Law Reading Room entry is “Petition Power,” by Erika Lietzan, which is forthcoming in the American University Law Review. Here is the abstract:

The law cannot be kept secret. We cannot comply with rules that we do not know. Nor can we question their legitimacy, which is both our right and our duty as citizens. And yet, a substantial body of law applied in this country is difficult for anyone but federal agency insiders to piece together. Rather than publishing regulations that lay out standards of conduct for the future, many agencies interpret the law, and articulate and implement new policies, as they go. Those subject to the law they implement are left to piece the rules together by studying whatever information is available about the individual decisions. This undermines the rule of law. This Article describes an administrative mechanism that can help restore the rule of law. That mechanism is a petitioning procedure, and this suggestion is based on studying decades of petitioning at the one federal agency with a formal procedure for accepting and considering any type of petition from any interested party — the Food and Drug Administration. If an agency faces a meaningful threat of judicial review in litigation brought by a petitioner, a petition can prompt it to articulate and explain its statutory interpretations and regulatory policies publicly, rather than simply implementing and illustrating policy as it makes case-by-case decisions. A petition back by the meaningful threat of judicial review can also force an agency to comply with a statutory mandate or correct errors in law or fact. In short, petitions—some petitions, that is—can increase transparency and through it contribute to the accountability of the administrative state.

“Petition Power” combines a deep-dive look into the FDA’s particular history regarding citizen petitions with a set of interesting suggestions for how agencies and the public might use such petitions to address some of the downsides of administrative governance. As someone who has recently written in support of the Chenery II doctrine but also recognizes that policymaking by adjudication has its flaws, I was particularly intrigued by Lietzan’s advocacy for using petitioning to bring to light agency policies developed outside of notice-and-comment processes. Overall, this article deftly weaves together the knowledge of a subject-matter expert with lessons relevant to anyone interested in administrative law.

The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.

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