Washington Law Review


This Note examines prior case law concerning agency use of adjudication for policy formulation. It also analyzes policy considerations both for and against that practice. The Note concludes that the Ninth Circuit's formula for abuse of discretion represents a new, and inadvisable, legal standard. Although Ford may have been an appropriate case for rulemaking, the court created an overly broad standard for when rulemaking must be used. This standard may preclude judicial consideration of policy factors favoring adjudication when the result of the adjudication is one which changes existing law and has widespread application. Furthermore, the Ford standard might deprive agencies of flexibility in deciding how to proceed in the face of a particular problem, a flexibility long recognized as critical for an effective administrative process.

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