Stern Receives Cromwell Article Prize

As members of the American Society of Legal History know, the William Nelson Cromwell Foundationhas long awarded a number of prizes and awards to scholars nominated by committees of the ASLH.  Since 2022, Cromwell has also awarded, on the nomination of its own committee, a $10,000 annual prize for a legal history article.  This year, the Cromwell's committee was chaired by John Fabian Witt.  Its other members were Mary Bilder, Risa Goluboff, Amalia Kessler, John Langbein, and yours truly.

The winner of this year's Cromwell article prize is Rephael G. Stern, Boston University Law School, for "The Lost English Roots of Notice-and-Comment Rulemaking," 134 Yale L. J. 1955 (2025).  Here is the committee's citation:

Stern takes up one of the most consequential procedures in American government—the notice-and-comment rulemaking enshrined in Section 553 of the 1946 Administrative Procedure Act—and asks where it came from.  Conventional scholarly accounts locate its origins alternately in congressional petitioning, nineteenth-century agency practice, and German administrative thought.  Drawing on original archival research, Stern shows instead that notice-and-comment rulemaking arose out of a series of American transplantations of U.K. procedures for delegated rulemaking in the late nineteenth and early twentieth centuries, from the Rules Publication Act 1893 through the influential 1932 report of the Donoughmore Committee.  New Deal reformers borrowed the English framework, with its requirements of publication and consultation.  But the transplant was only partial.  In light of concern that congressional involvement might obstruct administrative rulemaking, and given the resounding defeat of the nondelegation doctrine, Americans declined to import a crucial accompanying institution.  They omitted the English practice of “laying” regulations before the legislature for consideration—a form of legislative veto that was integral to rulemaking in England.

"The Lost English Roots of Notice-and-Comment Rulemaking" is a model of transatlantic legal history, recovering a largely forgotten Anglo-American world of administrative law and unsettling the origin stories that have dominated the field.  It is also a timely contribution to the present.  At a moment when administrative law has returned to large-scale constitutional questions like legislative veto and nondelegation, and in an era in which administrative law often seems beset on all sides, Stern’s history illuminates lost paths not taken in the past as well as new possible futures.  Readers of this article will ask themselves new questions, including whether some version of an English-style legislative veto might still offer democratic legitimacy to administrative procedures—or instead reproduce the very problems that led the New Deal’s architects to leave it behind.

--Dan Ernst