Eight Things Americans Can't Figure Out About Controlling Administrative Power

22 Pages Posted: 22 Jul 2008 Last revised: 8 Jan 2015

Sidney A. Shapiro

Wake Forest University School of Law

Richard W. Murphy

Texas Tech University School of Law

Date Written: 2008

Abstract

Administrative law is difficult because it reflects a tension between two fundamental impulses that pull in opposite directions. Effective government requires the allocation of discretionary power to agency officials, but for agency governance to be legitimate, administrative law must find ways to mediate this power, but not too much, robbing agencies of their effectiveness. We assume that other polities face similar difficulties and that the project of comparative administrative law therefore may suggest how to clarify and reform American administrative law. Written for a comparative administrative law conference, this Essay tries to advance cross-understanding by discussing issues of American administrative law that have been especially troublesome and contentious. Our discussion of eight things Americans cannot figure out about controlling administrative power leads us to conclude: (a) it is not clear which elected branch is in charge; (b) efforts to democratize policy formation are deeply problematic; and (c) administrative policy is hopelessly conflicted with regard to the scope of judicial power to tell agencies what to do.

Keywords: Administrative Law, Administrative Procedure Act

Suggested Citation

Shapiro, Sidney A. and Murphy, Richard W., Eight Things Americans Can't Figure Out About Controlling Administrative Power (2008). Administrative Law Review, Vol. 60, 2008; Wake Forest Univ. Legal Studies Paper No. 1162872. Available at SSRN: https://ssrn.com/abstract=1162872

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)

Richard Wyman Murphy

Texas Tech University School of Law ( email )

1802 Hartford
Lubbock, TX 79409
United States
806-742-3990 ex.320 (Phone)

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