Nadav Ben Zur ’20 first learned about the distinction between legislative and nonlegislative rules in his 1L Legislation and Regulation (“Leg-Reg”) class. This is an important concept in administrative law because agencies are required by law to provide stakeholders with notice and the opportunity to comment on legislative rules, but they need not go through this often cumbersome process for nonlegislative rules.
Ben Zur said he thought the common standard that courts use to tell the difference “wasn’t particularly satisfying.” His interest in the subject eventually led him to write a note, “Differentiating Legislative from Nonlegislative Rules: An Empirical and Qualitative Analysis,” published in the Fordham Law Review in 2019.
For his note, Ben Zur recently became one of 15 law students nationwide awarded the 2020 Law360 Burton Award for Distinguished Legal Writing. This is the second year in a row that a Fordham Law student has received the award.
Established in 1999, the Burton Awards “honor the finest accomplishments in law, including writing, reform, public service and interest, regulatory innovation, and lifetime achievements in the profession,” according to the organization’s website. Law360 is the lead sponsor, and the American Bar Association is a co-sponsor. Ben Zur will accept the award at an awards ceremony and gala currently scheduled for June 8, 2020 at the Library of Congress in Washington, DC.
To write his note, Ben Zur qualitatively analyzed more than 240 cases from various Federal Courts of Appeal spanning nearly seventy years. He considered the various tests used by courts and divided those tests into those that focus on the action of the agency versus the effect of the rule on the public. Ben Zur concluded that courts using a public-focused test are more likely to find a given rule to be legislative, requiring notice-and-comment, and he proposed a more balanced test considering both agency action and effect on the public. “The APA strikes a balance between public participation on the one hand and efficient agency on the other,” noted Ben Zur. “This is interesting because it implicates both political theory and jurisprudence. And, it’s exciting because there’s a lively debate between academics and judges and the arguments on both sides are very compelling.”
Professor James Brudney, an authority on legislation and regulation, advised Ben Zur on the note. He said working with Brudney gave him a “leg up.” “What’s remarkable about him is that he recognizes the issues you are least certain about, guides you to areas of research you should explore, and then expects you to either clarify the uncertainty or recognize that an area of law is truly vague,” said Ben Zur of Brudney, who helped him tackle and unpack some of the more difficult concepts in his research.
Ben Zur currently serves as a senior articles editor for the 2019-2020 Fordham Law Review and is looking forward to working as a litigation associate at Patterson Belknap after graduation. A native of Israel, he earned his undergraduate degree from Columbia before coming to Fordham for law school. “My entire U.S. experience has been in New York.” Ben Zur called his time at Fordham “incredible” and says he has found “all the faculty to be immensely knowledgeable and very approachable.”
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