Bureaucratic Oppression: Its Causes and Cures

Abstract

This article discusses the phenomenon of bureaucratic oppression – situations where government agencies mistreat members of the public. It is part of a current trend in administrative law scholarship that focuses on questions of governance, that is, how government performs its basic functions, rather than questions of legality, that is, the outer limits that courts should impose on that performance. While this scholarship has discussed rulemaking extensively, it has paid less attention to interactions between the state and individuals, perhaps on the assumption that this issue is adequately addressed by the extension of procedural due process protection to administrative agencies. The article argues that due process protection only reaches questions of legality and does not address the more general questions of governance that arise in individualized interactions. It addresses the topic by identifying the causes of bureaucratic oppression, namely, status differences between government agents and clients, the fact that the clients tend to be strangers to the agents, the presence of institutional pathologies within the agency, and the extent to which the incentives of agency officials diverge from the functions that they are expected to perform. It then analyses four prevailing strategies for combating bureaucratic oppression: due process, which is the legal or judicial solution, ombudspersons, generally a legislative solution, client-centered administration, which is based on management theory, and the use of market mechanisms, which is based on microeconomics. The article then proposes a new solution, an agency of the legislature that it describes as a collaborative monitor. It concludes by using this proposal to shed further light on the causes of, and potential cures for, of bureaucratic oppression.

Keywords: Administration, Governance, Bureaucracy, Management, Due Process