Rick Marcus has published a symposium essay on why the federal rulemaking process -- long thought to be dying -- has not yet expired. Much of the pessimism "has resulted from academic dislike of certain constraints introduced in the last quarter century on the central Liberal Ethos of the 1930s revolution," he writes. Also, "federal rulemaking activity has important structural advantages that will not go away." Moreover, the recent episode of rulemaking activity related to E-Discovery shows that the process can still be innovative.
The essay is called "Not Dead Yet" and appears at 61 Okla. L. Rev. 299 (2008).