Administrative Proxies for Judicial Review: Building Legitimacy from the Inside-Out

52 Pages Posted: 12 Aug 2012 Last revised: 3 Aug 2013

See all articles by Emily Hammond

Emily Hammond

George Washington University - Law School

David L. Markell

Florida State University - College of Law

Date Written: 2013

Abstract

Judicial review is considered an indispensible legitimizer of the administrative state. Not only is it a hallmark feature of the Administrative Procedure Act, but the various standards of review reinforce democratic norms, promote accountability, and act as a check against arbitrariness. Unreviewable agency actions, therefore, must find their legitimacy elsewhere. This article evaluates the promise of “inside-out” legitimacy as an alternative or complement to judicial review. We theorize, based on insights from the administrative law and procedural justice literatures, that administrative process design can do much to advance legitimacy without the need to rely on judicial review to check administrative decisionmaking. Next, we connect the theoretical conceptions of legitimacy to administrative behavior by offering metrics for testing intrinsic legitimacy. To demonstrate how these metrics might be applied, we present an empirical study of an innovative administrative fire-alarm process that enables interested parties to petition EPA to withdraw states’ authorization to administer the major environmental statutes. While this process may trigger a variety of responses by EPA, there is generally little recourse to the courts for citizens dissatisfied with the process or its outcomes. Our findings suggest that, even without external checks, EPA engages in numerous behaviors indicative of intrinsic legitimacy. In addition, the process itself produces real substantive outcomes. Armed with these findings, we conclude with an assessment of institutional design features that may contribute to inside-out legitimacy.

Suggested Citation

Hammond, Emily and Markell, David L., Administrative Proxies for Judicial Review: Building Legitimacy from the Inside-Out (2013). Harvard Environmental Law Review, Vol. 37, 2013, FSU College of Law, Public Law Research Paper No. 603, Wake Forest Univ. Legal Studies Paper No. 2127838, Available at SSRN: https://ssrn.com/abstract=2127838 or http://dx.doi.org/10.2139/ssrn.2127838

Emily Hammond

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

David L. Markell (Contact Author)

Florida State University - College of Law ( email )

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