Rulemaking by Adjudication

Background

The recent Supreme Court decision in Loper Bright v. Raimondo overturned the long-standing Chevron deference doctrine. This means that courts may no longer defer to agencies’ interpretations when a statute is unclear but must instead determine independently what the law says.

Now that executive agencies face stricter limits on rulemaking, they may seek alternative routes to create rules. One avenue is regulation by adjudication, even if SEC v. Jarkesy limits administrative adjudication of certain types of claims. The Supreme Court’s 1947 decision in SEC v. Chenery Corp. (“Chenery II”) is generally taken as blanket authorization for agencies to make law through either adjudication or rulemaking, if their organic statutes permit both modes.

But rulemaking through adjudication poses its own problems and has drawn criticism from scholars, attorneys, and experts. Rulemaking is general (applies to everyone) and prospective (applies only to future conduct). Adjudication is particular (involves only a single party or small number of parties in a concrete dispute with the agency) and retrospective (applies to past conduct). Because adjudication is particular, only a narrow part of the interests affected by a rule are before the agency. In other words, the agency does not receive the type of robust feedback that it typically gets through notice and comment rulemaking, even though it is creating rules that will apply broadly. Critics also charge that the retroactivity of rulemaking by adjudication is unfair and may even violate due process.

This research roundtable seeks to expand the literature available on rulemaking through adjudication and to inform future litigation brought in this area.

Possible Topics

1. What is the current scope and frequency of rulemaking by adjudication? Which agencies use it most, and which use it least? Should there be reforms adopted that affect only particular agencies?
2. What limits should there be on rulemaking through adjudication?
3. In courts, precedent and stare decisis ensure predictability and stability in the law. But applying those well-established principles of stare decisis to administrative adjudication may create some due process issues. Is due process a problem in agency adjudication?
4. What is the case law in this area? How could it change—and should it change? Chenery II often is said to be the leading Supreme Court case in this area. Should it remain good law? Why or why not?
5. In most agency adjudications, the agency plays roles typically held by multiple actors in private litigation. The agency investigates claims, prosecutes them, and serves as judge and jury in the adjudicative setting. Some claim that this can bias proceedings in favor of the agency, and indeed, most agencies have very high win rates in adjudications. Does this bias pose problems for rulemaking by adjudication, and how may these biases be best corrected?
6. How does rulemaking by adjudication work in the 50 states? What lessons for the federal system can be learned from studying the states?

Research Proposal Submission Details

Please submit a brief research proposal that describes your thesis or research question(s) and intended methodology and how your research will contribute to the discussion of rulemaking by adjudication.  

 Proposals should be submitted by January 10, 2025, to Alison Somin at asomin@pacificlegal.org. Early proposal submission is encouraged, as proposals will be reviewed on a rolling basis, and approvals will allow authors to begin work early. Submissions after January 10 may be accepted if space at the roundtable and budget permit.

Research Roundtable

Completed paper drafts are due two weeks before the date of the research roundtable but need not be in polished or publishable form. Authors will present their papers at the research roundtable that will be held in Spring 2025. Each paper’s author will be expected to discuss and comment on others’ papers. PLF will cover the cost of hotel accommodation and reasonable travel expenses to the roundtable.