Professor Jeffrey S. Lubbers
83 Geo. Wash. L. Rev. 1979
Published in Connection With the Law Review’s 2014 Symposium “The FTC at 100”
This Essay, prepared for The George Washington Law Review’s Symposium
“The FTC at 100,” addresses the Federal Trade Commission’s
rulemaking process—specifically the quasi-adjudicative process mandated by
the Magnuson-Moss Warranty—Federal Trade Commission Improvement
Act of 1975, and the additional procedures added by the Federal Trade Commission
Improvements Act of 1980 (collectively called the “Magnuson-Moss
Procedures”). This Essay compares how long it took the FTC to complete or
terminate the rulemakings it undertook under the Magnuson-Moss Procedures
(including amendments to previously issued rules) with the amount of
time it took the FTC to issue rules under the “regular” Administrative Procedure
Act (“APA”) notice-and-comment rulemaking process. This latter category
includes rules now on the books that were either issued before the
Magnuson-Moss Procedures, or after it—with special authorization from
Congress. As the title indicates, the main finding is that the Magnuson-Moss
Procedures take significantly longer—leading the author to advocate for allowing
the FTC to use APA procedures, like most agencies, in its rulemaking
while giving it the discretion to use procedures in addition to notice and comment
when desirable.
