Administrative Law Commons^™

The Deliberation Paradox And Administrative Law, Bill Sherman

Faculty Articles

Deliberation is a linchpin of administrative decision-making, and is a key basis for judicial deference to the agency’s interpretation of law. But deliberation has a dual valence in other areas of administrative law: it triggers the right to access to agency information in public meeting laws, but bars access in public records laws. This is the first article to identify and explain what I call the Deliberation Paradox in administrative law. This longstanding but unexplored dichotomy has roots in common law history, separation of powers, the purposes of public access statutes, and assumptions about how the government works. But the …

A Pragmatic Republic, If You Can Keep It, Bill Sherman

Faculty Articles

The administrative state has been bedeviled by doubts about its democratic legitimacy and its questionable Constitutional provenance. Courts and scholars attack or shore up this weakness, but almost all proceed on the assumption that the administrative state is a modern leviathan unimaginable to the Founders. Consequently, questions about the role of politics in agency decisions assign a disfavored role to “pure politics” in rulemaking. This Book Review Essay challenges that assumption and its implications for the role of politics in administrative decisionmaking. Centering on a review of Jerry L. Mashaw’s new book, Creating the Administrative Constitution: The Lost One Hundred …

Punctuated Equilibrium: A Model For Administrative Evolution, Mark C. Niles

Faculty Articles

The “public choice” model of the administrative state posits a federal regulatory structure that is dominated by the private entities subject to its policy proscriptions. The formidable advantages in resources and focus enjoyed by the these private entities leave governmental units, like agencies and legislatures, with little realistic chance to resist agency capture and avoid implementing the policy objectives of the parties whom they are charged with regulating.

As theoretically powerful and practically descriptive as this model is, there is one significant question for which it fails to provide a satisfying answer—why, if regulated entities enjoy a strangle-hold on the …

Lifting Burdens: Proof, Social Justice, And Public Assistance Administrative Hearings, Lisa Brodoff

Faculty Articles

In "Lifting Burdens: Proof, Social Justice, and Public Assistance Administrative Hearings," Lisa Brodoff describes the administrative hearing system for public assistance recipients and applicants, and asserts that it is the primary social justice system for the poor. She discusses why public assistance appellants are always placed at a significant disadvantage in this system. The article proposes that the best way to even out the inequities in adjudications is to always place the burdens of production and persuasion by clear and convincing evidence on the government in these hearings. She argues that policy, efficiency, and fairness require a consistent and heavy …