The Federalist Society

Regulation by Litigation

March 20, 2008

Andrew P. Morriss, Bruce Yandle, Andrew Dorchak

For over a century, government regulation has largely taken one of two paths. Some agencies publish proposed regulations, take comments on their proposals, and then revise the proposal into a final regulation. Some of these regulations have been issued through the negotiated rulemaking process, in which the initial proposal is crafted in negotiations with interested parties; in most cases, the initial proposal is written by the agency staff. Those dissatisfied with the fi nal regulation can seek review in the courts. Other regulatory agencies decide cases involving alleged violations of statutes through an adjudicatory process, issuing written decisions explaining their reasoning. These decisions then form a common-law-like body of law, which lawyers use to advise their clients about the likely outcome of future cases. Those dissatisfied with the agency’s decisions can appeal to the courts. The National Labor Relations Board, for example, has long operated almost entirely through Board decisions rather than through published regulations....

Regulation By Litigation  


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