Event Title

The Legislative Resolution of the Rulemaking Versus Adjudication Problem in Agency Lawmaking

Presenter Information

William T. Mayton

Location

Duke Law School

Start Date

15-2-1980 11:30 AM

End Date

15-2-1980 12:30 PM

Description

Over the past several years there has been considerable debate as to whether federal agencies should develop law and policy by adjudication, a traditional "lawmaking" forum, or by rulemaking, a forum unique to agencies. The consensus is that, in both theory and practice, rulemaking is the superior forum. It permits broad-based participation that benefits the affected public and educates the agency, its procedures expedite policy development, and its requirement that standards be codified and published promotes clarity and uniform application of law. Thus, the rulemaking process has been acclaimed as one of the "greatest inventions of modem government," and the agencies' failure to utilize it has been deplored. But these laments may be, in the words of Judge Friendly, no more than "crocodile tears."'

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Related Paper

William T. Mayton, The Legislative Resolution of the Rulemaking Versus Adjudication Problem in Agency Lawmaking, 1980 Duke Law Journal 103-135 (1980)

Available at: http://scholarship.law.duke.edu/dlj/vol29/iss1/3

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Feb 15th, 11:30 AM Feb 15th, 12:30 PM

The Legislative Resolution of the Rulemaking Versus Adjudication Problem in Agency Lawmaking

Duke Law School

Over the past several years there has been considerable debate as to whether federal agencies should develop law and policy by adjudication, a traditional "lawmaking" forum, or by rulemaking, a forum unique to agencies. The consensus is that, in both theory and practice, rulemaking is the superior forum. It permits broad-based participation that benefits the affected public and educates the agency, its procedures expedite policy development, and its requirement that standards be codified and published promotes clarity and uniform application of law. Thus, the rulemaking process has been acclaimed as one of the "greatest inventions of modem government," and the agencies' failure to utilize it has been deplored. But these laments may be, in the words of Judge Friendly, no more than "crocodile tears."'