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The Enlightenment of Administrative Law: Looking inside the Agency for Legitimacy


Sidney A. Shapiro


Wake Forest University School of Law

Elizabeth C. Fisher


University of Oxford - Faculty of Law

Wendy E. Wagner


University of Texas - School of Law, The Center for Global Energy, International Arbitration, and Environmental Law

November 8, 2012

Wake Forest Law Review, Vol. 47, No. 3, 2012
Wake Forest Univ. Legal Studies Paper No. 2173015

Abstract:     
The discourse over the legitimacy of unelected administration has produced two paradigms. Administrative law scholarship has focused almost exclusively on a rational-instrumental paradigm that seeks to legitimate from the outside in, relying on political oversight, judicial review, and scientific and social methodologies to squeeze the discretion out of public administration. By comparison, public administration scholarship has focused on a deliberative-constitutive paradigm that seeks to legitimate from the inside out, relying on administrative expertise, deliberation, and reason giving to ensure reasonable decision-making. This paradigm accepts administrative discretion both as unavoidable and as necessary.

Besides failing at its own goal of eliminating discretion, the rational-instrumental paradigm has produced rulemaking ossification, bureaucracy bashing, a misunderstanding of the role of science in administration, and a failure to build a comprehensive theory of administrative accountability, one which takes into account both paradigms. Despite these defects, contemporary administrative law scholarship and practice is so deeply enmeshed in rational-instrumental accountability that it is difficult for administrative lawyers to imagine that there is a complementary approach to legitimacy. Yet, the history of administrative law in this and other jurisdictions highlights the significance of the deliberative-constitutive paradigm. In light of the demise of interest group pluralism in rulemaking, and the scholarly dead end in which we find ourselves, it is time to recognize and develop the deliberative-instrumental paradigm.

Number of Pages in PDF File: 40

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Date posted: November 8, 2012  

Suggested Citation

Shapiro, Sidney A. and Fisher, Elizabeth C. and Wagner, Wendy E., The Enlightenment of Administrative Law: Looking inside the Agency for Legitimacy (November 8, 2012). Wake Forest Law Review, Vol. 47, No. 3, 2012; Wake Forest Univ. Legal Studies Paper No. 2173015. Available at SSRN: http://ssrn.com/abstract=2173015

Contact Information

Sidney A. Shapiro (Contact Author)
Wake Forest University School of Law ( email )
P.O. Box 7206
Winston-Salem, NC 27109
United States
336-758-5430 (Phone)
Elizabeth C. Fisher
University of Oxford - Faculty of Law ( email )
St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom
01865 276749 (Phone)
Wendy E. Wagner
University of Texas - School of Law, The Center for Global Energy, International Arbitration, and Environmental Law ( email )
Austin, TX
United States

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