Administrative Proxies for Judicial Review: Building Legitimacy from the Inside-Out
George Washington University - Law School
David L. Markell
Florida State University College of Law
Harvard Environmental Law Review, Vol. 37, 2013
FSU College of Law, Public Law Research Paper No. 603
Wake Forest Univ. Legal Studies Paper No. 2127838
Judicial review is considered an indispensible legitimizer of the administrative state. Not only is it a hallmark feature of the Administrative Procedure Act, but the various standards of review reinforce democratic norms, promote accountability, and act as a check against arbitrariness. Unreviewable agency actions, therefore, must find their legitimacy elsewhere. This article evaluates the promise of “inside-out” legitimacy as an alternative or complement to judicial review. We theorize, based on insights from the administrative law and procedural justice literatures, that administrative process design can do much to advance legitimacy without the need to rely on judicial review to check administrative decisionmaking. Next, we connect the theoretical conceptions of legitimacy to administrative behavior by offering metrics for testing intrinsic legitimacy. To demonstrate how these metrics might be applied, we present an empirical study of an innovative administrative fire-alarm process that enables interested parties to petition EPA to withdraw states’ authorization to administer the major environmental statutes. While this process may trigger a variety of responses by EPA, there is generally little recourse to the courts for citizens dissatisfied with the process or its outcomes. Our findings suggest that, even without external checks, EPA engages in numerous behaviors indicative of intrinsic legitimacy. In addition, the process itself produces real substantive outcomes. Armed with these findings, we conclude with an assessment of institutional design features that may contribute to inside-out legitimacy.
Number of Pages in PDF File: 52Accepted Paper Series
Date posted: August 12, 2012 ; Last revised: August 3, 2013
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