Rulemaking Inaction and the Failure of Administrative Law

38 Pages Posted: 29 May 2019

See all articles by Sidney A. Shapiro

Sidney A. Shapiro

Wake Forest University School of Law

Date Written: April 21, 2019

Abstract

Administrative law protects regulatory beneficiaries when agencies revoke or modify previous rules, but those protections evaporate concerning rulemaking inaction. Inaction has therefore become a strategy of deregulation with the impact of postponing regulation for years, maybe a decade. Despite the difficulty of judging an agency’s claim that it has higher priorities or that it needs more time to make a decision, judges should require more detailed explanations. Although less trusting judicial review is not without its problems, the current approach of abject deference to agency inaction ignores Congress’ commitment to protect people and the environment as specified in an agency’s mandate.

Suggested Citation

Shapiro, Sidney A., Rulemaking Inaction and the Failure of Administrative Law (April 21, 2019). Duke Law Journal, Vol. 68, No. 1805, 2019, Available at SSRN: https://ssrn.com/abstract=3381739 or http://dx.doi.org/10.2139/ssrn.3381739

Sidney A. Shapiro (Contact Author)

Wake Forest University School of Law ( email )

P.O. Box 7206
Winston-Salem, NC 27109
United States
336-758-5430 (Phone)

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