Pragmatic Administrative Law

Abstract:     
This essay is part of a symposium that comments on the impact of Richard Stewart's seminal article, The Reformation of American Administrative Law. The reformation has been followed by a counterreformation that is based on a set of premises that run directly counter for the premises of the reformation. Recently, some scholars, including Professor Stewart, have sought to move beyond the counterreformation, which they find insufficient to produce sound and legitimate government. This literature, like the earlier literature on the reformation and the counterreformation, adopts interest group pluralism as the basis of the administrative process. This essay evaluates the reformation, the counterreformation and the most recent scholarship through a different lens. As I have in other recent work, I propose that the American tradition of philosophical pragmatism offers the best methodology to evaluate and justify the administrative process. This approach leads me to three general conclusions. First, the reformation has been a greater success than Professor Stewart recognizes in the Reformation or his subsequent work. Second, the counterreformation has produced changes in the administrative process that cannot be justified as either improving the rationality of regulation or the legitimacy of the process. Finally, we should be quite cautious about implementing recent proposals by Professor Stewart and others because the available evidence indicates the methods that they favor only work in some specific contexts.

Keywords: regulatory reform, environmental law, administrative procedure

JEL Classifications: K23, K32

Accepted Paper Series