Minnesota Law Review
A number of observers presently believe that much federal rulemaking has become unduly complex, time-consuming, costly, and unwieldly,1 primarily because of the transformation of judicial review of rules promulgated after informal proce- dures into review on the administrative record. Former dean Carl Auerbach, for example, believes that this change in judi- cial review in the last decade has profoundly and adversely af- fected the rulemaking process on the administrative level.2 Auerbach suggests that requiring an agency to prepare a de- fense to all potential challengers of a proposed rule, regardless of the actual number or content of the challenges, imposes un- necessary costs and delays upon rulemaking,3 and places addi- tional burdens on courts that must cope with the voluminous and incoherent records generated by such procedures. 4
Daniel J. Gifford, Administrative Rulemaking and Judicial Review: Some Conceptual Models, 65 Minn. L. Rev. 63 (1980), available at http://scholarship.law.umn.edu/faculty_articles/329.