Prioritizing Accessibility and Clarity in Agency Actions

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Scholars analyze ACUS recommendations addressing public access to guidance, ALJ hiring procedures, and interpretive rules.

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The Administrative Conference of the United States (ACUS) is a federal agency that seeks to improve the administrative processes of the federal government. ACUS works with scholars and subject matter experts to research areas of administrative law that are in need of improvement, and then it develops recommendations for how to address those needs by consulting with government officials, the private sector, and members of the public. ACUS’s recommendations seek to drive improvements in administrative procedures and governmental practices.

Earlier this year, ACUS published new recommendations emphasizing public accessibility of agency guidance documents, efficient hiring of administrative law judges, and proper treatment of interpretive rules. The Regulatory Review invited leading scholars involved in developing these recommendations to discuss how implementing them can improve administrative government.

We are delighted that this series of essays features the following contributors: Jack M. Beermann, professor at the Boston University School of Law; Cary Coglianese, professor at the University of Pennsylvania Law School; Blake Emerson, assistant professor at the UCLA School of Law; Ronald M. Levin, professor at Washington University School of Law in St. Louis; and Connor Raso, senior counsel at the U.S. Securities and Exchange Commission.

As the federal government prioritizes efficiency and efficacy, continual review of agency procedures provides an important way to improve governmental performance. ACUS’s most recent recommendations encourage agency officials to make guidance documents easily accessible to the public, to improve the hiring process for administrative law judges, and to treat interpretive rules as largely similar to policy statements.

The Regulatory Review is pleased to present this series of essays on ACUS’s latest recommendations.

Making Guidance Available to the Public

October 28, 2019 | Cary Coglianese, University of Pennsylvania Law School, and Connor Raso, U.S. Securities and Exchange Commission

Regulatory agencies frequently issue guidance documents to help the public understand their policies better, but such guidance documents can only help those members of the public who can find them. Unfortunately, in some cases, guidance needs to be made more readily accessible to the public. ACUS adopted a new recommendation to encourage regulatory agencies to make their guidance easier for the public to find on agency websites.

The Future of Administrative Law Judge Selection

October 29, 2019 | Jack M. Beermann, Boston University School of Law

In the wake of Lucia v. SEC and a related Trump Administration executive order, each agency must devise and administer a process for hiring its own administrative law judges. To provide guidelines for these agencies, ACUS adopted a recommendation encouraging them to publicize their administrative law judge openings, formulate and publish concrete selection criteria, develop procedures to review and assess applications, and prioritize highly qualified candidates who will maintain impartiality in carrying out their duties.

Interpretive Rules in Practice

October 30, 2019 | Blake Emerson, UCLA School of Law, and Ronald M. Levin, Washington University School of Law in St. Louis

The newly adopted ACUS recommendation on interpretive rules recognizes their close kinship with policy statements. This is a virtue because it means that an agency will be able, in most situations, to adhere to ACUS’s advice without having to pause to decide whether a given guidance document is a policy statement, an interpretive rule, or a hybrid of the two.