BULR Annex

Editor’s Note: Boston University Law Review Annex is Boston University Law Review‘s online publication featuring essays, perspectives, and student notes. If you are an author interested in submitting an essay of 3,000 words or less for consideration, please click here for submission guidelines and instructions. 

Annex: Essays

Abandoning Administrative Common Law in Mortgage Bankers

Kathryn E. Kovacs

Perez v. Mortgage Bankers Association presents the Supreme Court with the opportunity to eliminate a rule of administrative common law that conflicts with the Administrative Procedure Act (“APA”). When Congress enacted the APA, it deliberately chose to exempt interpretive rules from the Act’s notice-and-comment requirements. The D.C. Circuit nonetheless invalidated a Department of Labor interpretive rule because it did not undergo notice and comment. The Supreme Court should respect the public deliberation reflected in the APA’s text and eliminate the D.C. Circuit’s administrative common law.

Mortgage Bankers also raises questions about another doctrine of administrative common law: the Supreme Court doctrine of deferring to agency interpretations of their own regulations. But the briefing does not address whether that longstanding doctrine conflicts with the APA and whether it has received Congress’s imprimatur. The Court need not and should not address that doctrine until those questions are answered.

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