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Environmental Deliberative Democracy and the Search for Administrative Legitimacy: A Legal Positivism Approach


Michael Ray Harris


University of Denver Sturm College of Law

March 27, 2010

University of Michigan Journal of Law Reform, Vol. 44, No. 2, Winter 2011
U Denver Legal Studies Research Paper No. 10-17

Abstract:     
The failure of regulatory systems over the past two decades to lessen the environment degradation associated with modern human economic output has begun to undermine the legitimacy of environmental lawmaking in the United States and around the world. Recent scholarship suggests that reversal of this trend will require a breach of the environmental administrative apparatus by democratization of a particular kind, namely the inclusion of greater public discourse within the context of regulatory decision-making. This Article examines this claim through the lens of modern legal positivism. Legal positivism provides the tools necessary to test for and identify the specific structural deficiencies of the administrative state as an environmental lawmaking institution. More importantly, legal positivism can be used to determine which changes to agency practice and procedure—of the many scholarly proposals to do so—would most likely be accepted by the U.S. legal system as a means to correct these deficiencies. To do so, however, American legal positivists must overcome their obsession with the U.S. Constitution as the measure of legal legitimacy in the American system. Instead, legitimacy of the environmental administrative state ultimately relies on fashioning rulemaking procedures that address American’s innate distrust of official power. The view of a reformed regulatory state presented in this Article is one where regulators continue to function as the technical and scientific experts, and in making policy determinations weigh the expert knowledge with the informed opinion of electorate and peer officials in the political branches of our government.

Number of Pages in PDF File: 41

Keywords: Environmental Law, Administrative Law, Legal Positivism, Environmental Deliberative Democracy, Constitutional Law

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Date posted: March 28, 2010 ; Last revised: June 17, 2014

Suggested Citation

Harris, Michael Ray, Environmental Deliberative Democracy and the Search for Administrative Legitimacy: A Legal Positivism Approach (March 27, 2010). University of Michigan Journal of Law Reform, Vol. 44, No. 2, Winter 2011; U Denver Legal Studies Research Paper No. 10-17. Available at SSRN: http://ssrn.com/abstract=1579356

Contact Information

Michael Ray Harris (Contact Author)
University of Denver Sturm College of Law ( email )
2255 E. Evans Avenue
Denver, CO 80208
United States
HOME PAGE: http://www.law.du.edu
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