David L. Franklin

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Legislative Rules, Nonlegislative Rules, and the Perils of the Short Cut

120 Yale L.J. 276 (2010).  Courts have long struggled to distinguish legislative rules, which are designed to have binding legal effect and must go through the rulemaking procedure known as notice and comment, from nonlegislative rules, which are not meant to have binding legal effect and are exempted from notice and comment. The distinction has been called “tenuous,” “baffling,” and...