Today’s Ad Law Reading Room entry is “The Lost English Roots of Notice-and-Comment Rulemaking,” by Rephael G. Stern, which was recently published by the Yale Law Journal and posted to SSRN.  Here is the abstract:

Notice-and-comment rulemaking is arguably the most important procedure in the modern administrative state. Influential accounts even frame it as the 1946 Administrative Procedure Act’s “most important idea.” But its historical origins are obscure. Scholars have variously suggested that it grew out of the constitutionally sanctioned practice of congressional petitioning, organically developed from the practices of nineteenth-century agencies, or was influenced by German conceptions of administrative rulemaking.

These histories, however, are incomplete. Using original archival research, this Article demonstrates that notice-and-comment rulemaking was the product of a series of American transplantations of English rulemaking procedures that developed in the late nineteenth and early twentieth centuries. In the New Deal Era, influential American reformers tracked important developments in English rulemaking as they grappled with the rapidly changing American legal ecosystem. Yet, as this Article emphasizes, Americans only partially adopted the English procedural framework. While they transplanted the “notice” and “comment” dimensions of English procedure, the Americans ultimately decided not to import a legislative veto, which was a critical part of rulemaking procedures in England.

By offering a revisionist account of the origins of notice-and-comment rulemaking, this Article makes two contributions. First, it takes an initial step toward recovering a largely forgotten world of Anglo-American administrative law. Second, it illuminates current debates about the legitimacy of notice-and-comment rulemaking. With many current critiques of notice-and-comment rulemaking centering on the procedure’s supposed lack of democratic accountability, the history this Article traces pushes us to ask whether belatedly transplanting an English-style legislative veto would legitimate the procedure.

Despite notice-and-comment rulemaking’s centrality to modern American administration, its origins and inspiration remain uncertain and subject to differing accounts.  Stern’s article makes a comprehensive and subtly provocative case for recognizing notice and comment’s roots in England.  Particularly interesting is Stern’s account of English “laying procedures,” which failed to make their way into the APA and which, in their “passive” and “affirmative” forms, resemble something like the processes required under the Congressional Review Act or the as-yet-unenacted REINS Act.  The article is rich with detail and is sure to influence how we understand the genealogy of the APA.

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.