The Challenges of Fiduciary Administration
9 Pages Posted: 17 Sep 2010
This Essay responds to Evan Criddle’s recent article, "Fiduciary Administration: Rethinking Popular Representation in Agency Rulemaking." I agree with Professor Criddle that (1) the presidential-control model of legitimacy in administrative law is misguided; (2) a fiduciary theory of administration is more realistic and normatively attractive; and (3) his reform proposals would significantly improve the status quo. I proceed to identify a few of the trickiest challenges that have arisen for scholars, like Professor Criddle and myself, who are skeptical of the presidential-control model and interested in developing alternative theories to justify and constrain the discretionary authority of administrative agencies in the modern regulatory state. First, I describe the vital roles that elections play in the modern regulatory state, even if they cannot accurately express the majority’s preferences on most political issues or hold public officials politically accountable for their specific policy decisions. Second, I discuss the complexities associated with ascertaining an appropriate role for political preferences within either a fiduciary theory of administration or one that is based on deliberative democratic theory. Third, I point out that the most viable alternatives to political-control models of administrative legitimacy tend to be fairly expensive and difficult to implement, and I suggest that it may be worthwhile in some contexts to consider adopting novel oversight mechanisms besides judicial review. Finally, I suggest that one of the biggest challenges faced by advocates of fiduciary administration and other theories that emphasize reasoned deliberation is to assuage the fears of "uncertainty" that could arise from rejecting political-control models.
Keywords: Administrative Law, Theories of Legitimacy, Reasoned Deliberation, Political Control
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