Notice & Comment

Symposium on Federal Agency Guidance and the Power to Bind

Notice & Comment

A Concluding Post on Federal Agency Guidance and the Power to Bind, by Nicholas R. Parrillo

Over the last few weeks, Notice and Comment has hosted a symposium with contributions from fourteen scholars on the binding power of federal agency guidance, using as a focal point my article “Federal Agency Guidance and the Power to Bind,” recently published in the Yale Journal on Regulation.  The contributions, many of which draw from […]

Notice & Comment

Soft Law Often Should be Permitted to Bind Agency Staff, by Peter L. Strauss

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 […]

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A Belated Contribution to the Symposium on Federal Agency Guidance and the Power to Bind, by Richard J. Pierce, Jr.

I have learned a lot from the articles in which Nick Parrillo summarized and built on the valuable empirical study of guidance documents that he conducted for ACUS and from the many comments on Nick’s work that scholars have published in the Notice and Comment symposium on Nick’s work. I hope to add to that […]

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The Solution to Regulatory Ossification May Be Regulatory Cartilage, by Jamie Conrad

Nick Parrillo’s publications are like Robert Caro’s – so synoptic, and so exhaustively researched, that it’s inconceivable that anyone could do a better job.  As a result, it’s a daunting prospect to quibble with any of his conclusions and recommendations – much less to dispute them fundamentally.  What’s more, as a practitioner – and one […]

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Pursuing Parrillo’s Principled Flexibility, by Kristin E. Hickman

Everyone familiar with the intertwined spheres of administrative law and regulatory practice knows that federal agencies routinely issue informal, subregulatory pronouncements, referred to collectively as “guidance,” articulating their views regarding the law’s requirements.  Agency use, and arguable abuse, of guidance to direct the behavior of regulated parties and agency employees is a perennial topic of […]

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The Binding Effect of Interpretive Rules, by Ronald M. Levin

Nick Parrillo’s article Federal Agency Guidance and the Power to Bind is a truly admirable study of the realities underlying agencies’ creation and use of guidance documents.  It will doubtless stand as a definitive examination of the practical factors that can cause informal agency pronouncements to exert coercive pressure on private persons, even when those […]

Notice & Comment

Agency Guidance and the Agency Costs of Compliance, by Sean J. Griffith

Inhabitants of the administrative state who are concerned about the rule of law may be comforted by the fact that there are rules about making rules.  The Administrative Procedure Act (“APA”) requires regulatory agencies to expose prospective rules to democratic processes, most notably the notice and comment period, before they become binding.  “Guidance” – regulatory […]

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Corporate Integrity Agreements, Agency Speech, and Unmoored Guidance

Nicholas Parrillo’s Federal Agency Guidance and the Power to Bind provides an important window into the perspectives of diverse stakeholders on the use, structure, and influence of agency guidance. Parrillo ultimately argues that agencies adopt, and regulated or interested stakeholders internalize, guidance through a complex process that belies simplistic assertions that agencies, more or less, […]

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Immigration Law and a Second Look at the Practically Binding Effect, by Jill E. Family

Immigration law can serve as a useful lens to examine broad administrative law principles because the nature of regulation in immigration law is distinctive.  The regulated party is an individual noncitizen.  The regulation includes restrictions on fundamental life decisions such as where one will live and work.   While it is true that no two agencies […]

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Fresh Start: A Comment on “An Empirical Study of Agencies and Industries,” by Michael Asimow

Nick Parrillo’s article on the binding effect of guidance is brilliant.  It formed the basis for ACUS Recommendation 2017-5 which furnishes best practice suggestions for mitigating the de facto binding effect of guidance. Yet ACUS had to work within the constraints of the APA’s primitive treatment of guidance and the dubious and result-oriented case law […]

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The Problem with Agency Guidance – or Not, by Mark Seidenfeld

 Nicholas Parrillo has written a most fair-minded evaluation of federal agency guidance. He is careful to point out the great benefits guidance provides to agencies, the public and even to regulated entities, in the form of increased consistency and accountability in agency discretion in implementing statutes, as well as increased notice to regulated entities about […]

Notice & Comment

Introduction: Symposium on Federal Agency Guidance and the Power to Bind, by Richard Murphy

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 […]