Recent publications by ACUS Members span the spectrum from exploring the future of rulemaking to examining the history of agencies.  This post and the attached fact sheet spotlight scholarship by ACUS Members and staff through August of 2013.  The views expressed therein are those of the individual authors and do not necessarily reflect the views of ACUS.

This blog post is the first in recurring series to examine administrative law scholarship by Conference members.  It was prepared by Brandon Bull, an ACUS summer intern and a third-year law student at the University of Virginia.

The Administrative Conference’s recent project on Incorporation by Reference has generated a wealth of scholarship by Conference members and staff.  In-house researcher and staff Attorney Advisor Emily Bremer recently published Incorporation by Reference in an Open-Government Age in the Harvard Journal of Law and Public Policy, examining the challenges agencies face when incorporating by reference extrinsic materials into federal regulations.[1]  The article addresses, among other matters, the difficult problem of how to ensure that the public has access to materials that are or may be incorporated by reference.  Professor Nina Mendelson’s forthcoming article, Private Control over Access to Public Law: The Puzzling Federal Regulatory Use of Private Standards,  argues that it is important to consider notice to parties who expect to benefit from government programs in addition to regulated entities in evaluating the value of public access to the law.[2]  Professor Peter Strauss’s article, Private Standards Organizations and Public Law, examines access to materials incorporated by reference in the digital age and suggests approaches to bring the use of incorporation by reference into conformity with modern rulemaking practices while respecting: the general proposition that documents stating citizens’ legal obligations are not subject to copyright, federal statutory policy favoring the use of privately developed standards in rulemaking, and the needs standards organizations have to find reasonable means to support the costs of their operations.[3]

Conference Council Member Mariano-Florentino Cuellar recently published two works examining historical developments in administrative law. In Governing Security: The Hidden Origins of American Security Agencies, Professor Cuellar investigates the origins of the Roosevelt-era Federal Security Agency (which gave rise to the Department of Health and Human Services) and the Department of Homeland Security.[4] In American Executive Power in Historical Perspective, Professor Cuellar examines the historical development of the concept of a unitary executive, noting the concept’s roots in the Roosevelt Administration’s efforts to reorganize the executive branch.[5]

These works only scratch the surface of recent scholarship by ACUS Members. For a list of recent publications by ACUS Members and staff, please see the attached fact sheet.