Terrific news for readers of the Notice & Comment blog! (That is, you.) The Yale Journal on Regulation has organized another on-line symposium. This one focuses on how legally nonbinding guidance documents can potentially have a binding impact in practice, using as a focal point Professor Nicholas Parrillo’s article, Federal Agency Guidance and the Power to Bind: An Empirical Study of Agencies and Industries, 36 Yale Journal on Regulation 165 (2019). Over the next week or so, the editors of Yale JREG will be publishing on the blog one or two posts per day from about a dozen scholars with their reactions. (And many thanks to all of them!)
Professor Parrillo has provided a summary of his article and findings in a more substantial introductory post, so I won’t try to do the same in this short paragraph. Allow me just to say, however, that this article is a model of administrative law scholarship that should prove enormously valuable in clarifying one of the most longstanding and vexing problems of the field–how to think about the practical power of “nonbinding” guidance to “bind.” To shed light on this problem, Professor Parrillo interviewed 135 people from across agencies, NGOs, and industry, seeking their insights as to why agencies and regulated parties follow (or don’t follow) guidance. The results are extremely illuminating.
Coming up next in the series, to provide a framework for later discussion, will be Professor Parrillo’s own summary of his work.
Richard Murphy is the AT&T Professor of Law at Texas Tech University School of Law.
This post is part of a symposium on federal agency guidance. The rest of the posts in this symposium can be viewed here.