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How the Supreme Court Derailed Formal Rulemaking

Professor Kent Barnett · January 2017
85 Geo. Wash. L. Rev. Arguendo 1

Based on archival research, this Essay explores the untold story of how the
Supreme Court in the 1970s largely ended “formal” trial-like rulemaking by
federal agencies in two railway cases. In the first, nearly forgotten decision,
United States v. Allegheny-Ludlum Steel Corp., the Court held sua sponte that an
agency was not required to use formal rulemaking, despite its significant
historical provenance. That unpersuasive decision all but decided the second,
better-known decision,
United States v. Florida East Coast Railway, the following
term. In response to both decisions, agencies abandoned formal rulemaking—one
of only four broad categories of agency action—and policymakers and scholars
largely ceased debating its virtues. Findings from the Justices’ personal papers—
including that the Court identified the issue only after oral argument and
appeared deeply uninterested in
Allegheny-Ludlum—should revive the longmuted
debate among scholars and Congress over formal rulemaking’s utility and
the continued vitality of the Court’s railway decisions.

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