On Friday, November 15, 2019, at the section’s annual fall meeting, I was pleased to present the ABA Administrative Law Section’s Award for the Best Scholarship in the field published in 2018 (which the 2019 award recognizes). The section’s award committee, which I chair, includes Bill Araiza, Jack Beermann, Jonathan Cedarbaum, Neal Devins, and Emily Hammond.
As you would expect of an enterprise associated with this section, the committee takes its work very seriously. As the Supreme Court observed in Morgan v. United States, 298 U.S. 468 (1936), in an administrative adjudicative process, the duty to render a decision includes an obligation on the decision maker’s part to carefully consider and sift the relevant evidence. As Chief Justice Charles Evans Hughes explained:
That duty cannot be performed by one who has not considered evidence or argument. It is not an impersonal obligation. It is a duty akin to that of a judge. The one who decides must hear.Id. at 481.
So too, for the Scholarship Award Committee.
We received over a dozen nominations for the 2019 award. In addition, we consulted widely with leading scholars and practitioners in our field. We also reviewed every issue of the CILP covering 2018 law reviews to ensure that we did not miss any scholarly works that merited consideration.
The Committee cast a very wide net! Our initial list of candidates for the award comprised over forty pieces, which we diligently reviewed to arrive at a middle list of around fifteen pieces. We culled this to a finalist list comprised of four quite excellent scholarly works. Any of these works would have been a worthy winner; accordingly, engaged and lively deliberations ensued. After extensive discussion within the committee about the relative merits of the four finalists, we unanimously concluded that Ronald M. Levin, who is well known to members of this section for his many years of service, including as section chair, and as one of the section’s delegates to the ABA House of Representatives, had authored the best work published in 2018.
In the Committee’s unanimous view, Ronald Levin’s Rulemaking and the Guidance Exception, 70 ADMINISTRATIVE LAW REVIEW 263 (2018) constitutes the best work in our field
published in 2018. Professor Levin serves as the William R. Orthwein
Distinguished Professor of Law at the Washington University School of Law, in
St. Louis, Missouri.
Professor Levin’s article is well written, comprehensively researched, and provides important insights into the longstanding, and ongoing, morass of determining when agency guidance documents, in the form of general statements of policy or interpretative rules, should be deemed to cross the legal threshold of becoming legislative rules and, accordingly, require informal notice and comment rulemaking in order to be validly enacted.
Rulemaking and the Guidance Exception makes a major contribution to the literature by showing, in very persuasive terms, that the seemingly unsolvable problem of distinguishing interpretative rues from legislative rules – or, as Levin puts it, quite possibly “the single most frequently litigated and important issue of rulemaking procedure before the federal courts today” (p. 265) – could be solved through the adoption “of a single test, namely the binding norm test [courts] already apply to policy statements.” (P. 268.)
Levin’s proposal for reform, namely treating general statements of policy and interpretative rules identically, is creative, well-argued, and, if adopted by the federal courts, would help to clear up an area of administrative law and theory that has been aptly described as “enshrouded in considerable smog.” He persuasively posit that “the dividing line between interpretive rules and policy statements has always been rather contrived” and that, in truth, “a particular document can contain both legal interpretations and policy positions.” (P. 349.) What’s more, by providing an adequate opportunity for contestation of agency guidance before the agency itself, many of the principal normative and practical concerns associated with permitting agencies to make policy absent notice and comment rulemaking would be considerably reduced, if not quite obviated entirely. (Pp. 353-55.)
Rulemaking and the Guidance Exception does a careful, and masterful, job of synthesizing scholarly, institutional, and judicial engagement with the guidance exception, tracing the evolution in jurisprudence for both general statements of policy (GSPs) and interpretative rules (IRs), ultimately arguing for a unified standard of review – namely, the “binding legal norm” test long used to assess the validity of GSPs without notice and comment proceedings. Given that regulated parties have a strong interest in helping to inform agency policies, the relevant question regarding the permissibility of an IR should not be whether a particular IR hews closely enough to a statute to be merely a pass through rather than a policy choice (something almost always to be largely in the eye of the beholder), but rather whether an agency intends to foreclose further discussion of the matter within the agency itself.
Levin posits that,
as with GSPs,
the ability of regulated entities to contest an agency IR before
the agency itself, as opposed to solely on judicial review before the federal
courts, should serve as the sine qua non of an IR versus a legislative rule.
This elegant solution
would have the effect of
ensuring that agencies must listen to the concerns of regulated entities – and
would also enhance and improve judicial review when agencies elect to stick to
their guns in the teeth of persuasive arguments that they have made a blown
call (which would be reflected in the administrative record
and would likely
be considerably harder
for a reviewing
court to ignore than arguments set forth in the first instance in a brief in support of a petition for review).
Finally, no serious devotee of administrative law could reasonably disagree with Levin’s assertion that “agencies’ misuse of interpretive rules and policy statements is a challenge that administrative law should continue to address.” (P. 356.) His excellent article does precisely this – it grapples seriously with one of the most convoluted areas of agency policy making procedural practice.
In sum, the committee believes that the important procedural questions that Rulemaking and the Guidance Exception identifies, analyzes, and attempts to solve will be of considerable interest to lawyers, judges, and legal academics alike – and also to the many section members who work in federal administrative agencies. We are pleased to recognize it as the best work published in the field of administrative law in 2018.
In winning the section’s scholarship award, Professor Levin joins a highly distinguished group of administrative scholars who have earned this important recognition for the excellence of their scholarship. Past winners of the section’s award include Jerry Mashaw, Anne Joseph O’Connell, Cass Sunstein, as well as Stephen Breyer, William Eskridge, Jr., Elena Kagan, Liz Magill, Nina Mendelson, Thomas Merrill, Gillian Metzger, and Peter Strauss.
In sum, this is a signal professional achievement and the committee extends its warm congratulations to Professor Levin for authoring such an impressive and important article.
Finally, the committee welcomes nominations (including self-nominations) for the 2020 section scholarship award, which will recognize the best scholarship in administrative law published in 2019. Nominations for the 2020 award may be sent to Ms. Anne Kiefer at Anne.Kiefer@americanbar.org.
Ronald Krotoszynski is the John S. Stone Chairholder of Law and Director of Faculty Research at the University of Alabama School of Law.