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Agency Choice of Policymaking Form

Elizabeth Magill, University of Virginia School of Law

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Published 71 U Chi L Rev 1383 (Fall 2004)

Abstract

This Article identifies, analyzes, and starts to come to terms with a phenomenon in administrative practice and law. In a nutshell, it is that administrative agencies are often authorized by statutes and case law to use a range of distinct policymaking forms to effectuate their statutory mandates–adopting a rule (which, if valid, operates like a statute), bringing or considering an individual case, or issuing an advisory articulating their views–and their choice about which tool to rely on appears (at first blush at least) to be unregulated by courts.

Part I of the Article will focus on the choice of policymaking form at the level of the agency: What tools do statutes and case law typically make available to agencies? What is the significance of the choice among them? And what choices do agencies make?

Part II takes up the judicial reaction to agency choice of form. It identifies what is, at first blush, a puzzling judicial reluctance to require agencies to explain why they have chosen one policymaking form or another. This reaction is puzzling because it is in tension with the rest of the law of judicial review of agency action. This part then offers an explanation for the structure of the law. By adjusting the consequences of choosing one form or another courts have the opportunity to respond to whatever concerns they might have about an agency’s choice of procedure.

Part III starts the effort to come to terms with agency choices of procedure. It presents a preliminary hypothesis about how an agency chooses its preferred from, identifies the concerns we might have about those choices, and argues that the model of judicial examination of agency choices identified in Part II could respond to those concerns.

Subject Area

Administrative Law, Public Law and Legal Theory

Recommended Citation

Elizabeth Magill, "Agency Choice of Policymaking Form" (July 2005). University of Virginia Legal Working Paper Series. University of Virginia Public Law and Legal Theory Working Paper Series. Working Paper 33.
http://law.bepress.com/uvalwps/uva_publiclaw/art33

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