Boston University School of Law


Rethinking Notice
Jack M. Beermann

Boston University School of Law Working Paper 13-49 (November 5, 2013)


The issue addressed in this paper is the standard that reviewing courts should apply when deciding whether changes between a proposal and final rule render the notice inadequate under APA § 553. I have written about this issue before, taking the position that courts should stick closely to the language of § 553, and generally allow agencies great leeway in making changes between proposals and final rules. In this essay, I raise some concerns about my earlier position which have led me to reconsider the issue. In short, there is a good instrumental case to be made against strict adherence to the text of the APA and in favor of requiring a new round of notice and comment when agencies make unanticipated changes to their proposals when promulgating final rules.

Keywords: APA, notice, section 553

JEL Classification: K23

Working Paper Series

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Jack M. Beermann Contact Information:
Professor of Law and Harry Elwood Warren Scholar, Boston University
Boston University School of Law
765 Commonwealth Ave
Boston, MA 02215
(617) 353-2577

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Presentation and Publication Information:
Jack Beerman, "Rethinking Notice," SSRN No. 2349716, Boston University Public Law & Legal Theory Research Paper No. 13-49.

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