Direct Republicanism in the Administrative Process

69 Pages Posted: 2 Apr 2012 Last revised: 20 Aug 2013

Date Written: March 8, 2013

Abstract

This Article offers a new response to an old problem in administrative law: how to secure sound, democratically legitimate policies from unelected regulators. The question stems from a principal-agent problem inherent in representative forms of government — the possibility that government officials will not act in the public’s best interests — and it is rarely absent from legal and policy debates. Major regulatory failures and the government’s responses to them have renewed its significance in recent years, as agencies implement new laws and adapt old ones, courts review their actions, and the White House and Congress debate proposals for regulatory reform.

Traditional models of democratic legitimacy in administrative law focus on agency accountability to elected officials or increasing interest group participation in the regulatory process. These models are valuable but ultimately fall short, largely because their representative nature replicates rather than remedies the core principal-agent problem. More recently, some scholars and reformers have attempted to engage citizens directly in the regulatory process. But these efforts have not circumvented the representation-based problems, and they also suffer from the high costs and other complications of direct democracy that counsel in favor of representative forms of government.

This Article introduces a new model for democratic legitimacy, "direct republicanism," which attempts to combine elements of representative and direct approaches. In a direct republican system, large panels of randomly selected citizens decide policy questions presented to them by government officials. In this way, citizens can act as their own representatives, the principals their own agents. The Article sketches an initial application of direct republicanism to the regulatory process in the form of "administrative juries."

Keywords: administrative law, citizen participation, public participation, deliberative democracy, jury, juries

Suggested Citation

Arkush, David J., Direct Republicanism in the Administrative Process (March 8, 2013). George Washington Law Review, Vol. 81, 2013, Available at SSRN: https://ssrn.com/abstract=2029860 or http://dx.doi.org/10.2139/ssrn.2029860
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