Abstract

http://ssrn.com/abstract=148700
 
 

Footnotes (203)



 


 



Speed Bumps on the Road to Administrative Law Reform in California and Pennsylvania


Michael Asimow


Stanford Law School


Widener Journal of Law and Public Policy, 1999

Abstract:     
The California Law Revision Commission has been working for ten years on administrative law reform. This work resulted in one solid success--enactment in 1995 of a new Administrative Procedure Act for adjudication. The new APA modernized California's APA by providing an administrative law bill of rights for litigants before agencies not covered by prior law. It also introduced some important reforms such as informal hearings and alternate dispute resolution. The Law Revision Commission also suffered two ignominious failures: its judicial review reform bill was killed in a state senate committee and a modest set of rulemaking reforms passed the legislature but was vetoed by the governor.

This article analyzes the politics of state administrative procedure law reform in California, identifying the relevant players and pointing out the pitfalls that any state administrative law reform is likely to encounter. Reformers must enlist a powerful political patron to back the project and must be prepared to compromise until virtually all serious opposition is neutralized. They must articulate a powerful intellectual case for reform, in order to counter the cliche "if it ain't broke don't fix it." In particular, there must be some benefit in the reform package for state agencies so that they have a reason to buy in. For example, a provision for informal hearings or a provision that allows an agency to adopt precedent decisions without going through rulemaking might be attractive to agencies.

Agencies will staunchly resist reforms that increase their costs (for example, by required rulemaking) or reduce their autonomy or power (for example, by stripping them of their administrative law judges or diminishing their ability to overturn ALJ findings). Similarly, the private sector will resist reforms that diminish procedural or judicial review protections. Many people will mistrust and misunderstand any reform effort. In the nature of the political process, it is easy to kill legislation (especially when generous campaign contributors are trying to kill it) and hard to pass it. Therefore, reformers must be as inclusive as possible during the drafting of legislation so that all major players can have input into the process. It will often be necessary in this process to scale back ambitious reform proposals and make timely compromises. Failure to recognize these realities of political life doomed the Law Revision Commission's judicial review bill.

The article surveys existing Pennsylvania administrative law which is relatively primitive. The waves of reform marked by the 1961 and 1981 Model State Administrative Procedure Acts have largely passed Pennsylvania by. The lack of statutory law has forced Pennsylvania courts to reform administrative procedure by applying the state constitution. These decisions seem ill-informed and they unduly constrain the legislature. On the other hand, Pennsylvania's system of uniform administrative procedural rules is a significant innovation. Pennsylvania administrative law needs updating, but the process of achieving reform will be tedious and difficult. The California experience should prove valuable to Pennsylvania as it undertakes this process.

Number of Pages in PDF File: 98

JEL Classification: K23

Accepted Paper Series





Download This Paper

Date posted: February 16, 1999  

Suggested Citation

Asimow, Michael, Speed Bumps on the Road to Administrative Law Reform in California and Pennsylvania. Widener Journal of Law and Public Policy, 1999. Available at SSRN: http://ssrn.com/abstract=148700 or http://dx.doi.org/10.2139/ssrn.148700

Contact Information

Michael R. Asimow (Contact Author)
Stanford Law School ( email )
559 Nathan Abbott Way
Room 241
Stanford, CA 94305-8610
United States
650-723-2431 (Phone)
650-725-0253 (Fax)
Feedback to SSRN


Paper statistics
Abstract Views: 2,507
Downloads: 150
Download Rank: 118,893
Footnotes:  203

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo6 in 0.422 seconds