Guidance Documents and Rules: Increasing Executive Accountability in the Regulatory World

Abstract

Guidance documents pose a peculiar problem in administrative law. Although guidance documents are supposed to be non-binding memoranda, they sometimes have the effect of creating binding law in practice. Courts lack an effective way to determine when guidance documents are essentially binding. This Note examines why past, current, and proposed judicial tests for determining whether guidance documents are binding are flawed, and it proposes an alternative model based on executive review.