Proposals for Reforming the Administrative Procedure Act: Globalization, Democracy and the Furtherance of a Global Public Interest

Abstract:     
On February 3, 1999, Dean Alfred C. Aman, Jr. delivered the Third Annual Snyder Lecture at Cambridge University. This lecture recently has been published in 6 Ind. J. of Global Legal Stud. 397. It examines Administrative Law Reform, and is part of a larger work now in progress, dealing with the APA and possible legislative approaches to Administrative Law Reform. This lecture builds on the theoretical perspectives on globalization and their implications for administrative and constitutional law, as set forth in Aman, The Globalizing State: A Future-Oriented Perspective on the Public/Private Distinction, Federalism, and Democracy, 31 Vand. J. Trans. Law 719 (1998).

The lecture sets forth four different conceptions of globalization -- the comparative/international model, globalization as Americanization, globalization as denationalization, and what the author calls "the globalizing state." With these frameworks in mind, the lecture then examines Administrative Law Reform, arguing that for years, U.S. public law debates have been dominated by the question of which public institution should be responsible for certain kinds of policymaking -- the court, the legislature or the administrative agency. The democracy problem inherent in globalization, however, is more fundamental. It involves more than a debate over which public institution is best suited to decide certain kinds of legal issues. What is at stake when the "globalizing state" delegates power to the market and various non-State private actors often is a far more striking choice between some democracy (or participation) and none at all.

The lecture then considers APA reforms in three contexts: (1) the extension of the APA to certain private entities; (2) the creation of greater transparency and opportunities for participation in the processes of contracting out governmental functions to private entities; and (3) the need for a global impact statement in certain kinds of rulemaking proceedings.

The lecture concludes that the APA of the future should include within its scope private entities carrying out public functions, a requirement that the global implications of domestic policies be considered if not coordinated with international strategies to deal with global problems, and an evolving sense of how public participation and transparency might be facilitated by the very technologies that are raising new issues, given their undeniably global characteristics.

Working Paper Series