Administrative Law after the Counter-Reformation: Restoring Faith in Pragmatic Government

Abstract

This essay is part of a Symposium entitled ?American Regulatory Policy: Have We Found A Third Way?? It considers whether there is a ?third way? to think about the accountability of government to the public when it implements regulatory and other related functions. Administrative law has been dominated in the last thirty years by two viewpoints of government. The ?reformation? named by Richard Stewart in the 1970s, obtained a fundamental reorientation of administrative law as a pluralistic decision-making process, in which citizens can participate and hold government accountable to carry out its many regulatory missions. The reformation was followed by what I call the ?counter-reformation? which, as its name implies, seeks to undo the achievements of the reformation. The counter-reformation seeks to rationalize regulation by requiring policy analysis and by reducing excessive citizen participation in the regulatory process. The counter-reformation has provoked two reactions. The first, the ?restoration?, seeks to restore the reformation by blunting, if not reversing, the impact of the counter-reformation. The other, the ?reconciliation?, seeks to reconcile the reformation and counter-reformation by relying on cooperation with regulated entities and on participatory decision-making involving regulated entities, citizens, and regulators. The jury is out, however, on whether the processes favored by the reconciliation can obtain the objectives of the reformation and counter-reformation without the undesirable side-effects of each. The reconciliation might be characterized as a ?third way? in administrative law because, while it shares the objectives of both the reformation and counter-reformation, it proposes a conception of the administrative process that is fundamentally different than either. This essay argues, however, the pragmatic tradition of governance in the United States offers a better conception for administrative reform. With its instrumental orientation, pragmatic governance adopts procedures on the basis of actual outcomes. Thus, it would utilize procedures of the reformation and the counter-reformation, but based on a dispassionate assessment of their strengths and weaknesses, rather than on a fear of capture. With its interest in experimentation, pragmatic governance would try the procedures favored by the reconciliation, but subject them to the same demanding test.

JEL Classification: K2, K32, K40