The Jurisprudence of Notice and Comment

Jamison E. Colburn, Western New England College, School of Law

Abstract

What does it mean to say that an administrative agency is a 'source' of law? Agencies constantly generate what we regard as law, making and remaking legal obligations at a frenetic pace. Yet most of the rules agencies make lack the force of law and recognizing those that have it is often an exceptionally complicated task. It is a task, indeed, that courts are usually not suited to performing, at least not very well. In this article, I argue that the nature of modern legislation and our turn toward informal agency process have combined to render the bulk of lawmaking in our society unrecognizable within our conventional picture of legality. If legal rules are, as most positivists maintain, really just so many 'exclusionary reasons' by which legal actors guide their conduct, agency rules that are never enacted as such are becoming more and more of our law's content. Notice and comment was neither the beginning nor the culmination of our legal system's departure from traditional, easily recognizable forms of law. But it may be the best measure of a truly changed concept of law ascendant today.