Seidenfeld on review of guidance documents

"Substituting Substantive for Procedural Review of Guidance Documents" by Mark Seidenfeld (Florida State), 90 TEXAS L. REV. 331 (2011), is available here.

In this Article, Professor Seidenfeld looks at issues concerning how federal agencies issue interpretive rules and policies and how courts respond to such documents. Seidenfeld looks at how scholarship has focused on procedural impediments to the issuance of guidance documents. While he concludes that those who favor giving agencies more leeway to use them have the better argument, this argument is incomplete. While a number of scholars have attempted to transcend the debate and have suggested solutions to agency abuse that do not depend on courts finding defects in agency procedures, Professor Seidenfeld argues that these solutions are also imperfect.

Instead, Seidenfeld proposes to shift the debate from one of procedural requirements to one of substantive review, concluding that this approach preserves agency flexibility and encourages agencies to still solicit outside input.

A hot topic. EMM