The Enlightenment of Administrative Law: Looking inside the Agency for Legitimacy

40 Pages Posted: 8 Nov 2012  

Sidney A. Shapiro

Wake Forest University School of Law

Elizabeth C. Fisher

University of Oxford - Faculty of Law

Wendy E. Wagner

University of Texas at Austin – School of Law; University of Texas at Austin – Kay Bailey Hutchison Center for Energy, Law & Business

Date Written: November 8, 2012

Abstract

The discourse over the legitimacy of unelected administration has produced two paradigms. Administrative law scholarship has focused almost exclusively on a rational-instrumental paradigm that seeks to legitimate from the outside in, relying on political oversight, judicial review, and scientific and social methodologies to squeeze the discretion out of public administration. By comparison, public administration scholarship has focused on a deliberative-constitutive paradigm that seeks to legitimate from the inside out, relying on administrative expertise, deliberation, and reason giving to ensure reasonable decision-making. This paradigm accepts administrative discretion both as unavoidable and as necessary.

Besides failing at its own goal of eliminating discretion, the rational-instrumental paradigm has produced rulemaking ossification, bureaucracy bashing, a misunderstanding of the role of science in administration, and a failure to build a comprehensive theory of administrative accountability, one which takes into account both paradigms. Despite these defects, contemporary administrative law scholarship and practice is so deeply enmeshed in rational-instrumental accountability that it is difficult for administrative lawyers to imagine that there is a complementary approach to legitimacy. Yet, the history of administrative law in this and other jurisdictions highlights the significance of the deliberative-constitutive paradigm. In light of the demise of interest group pluralism in rulemaking, and the scholarly dead end in which we find ourselves, it is time to recognize and develop the deliberative-instrumental paradigm.

Suggested Citation

Shapiro, Sidney A. and Fisher, Elizabeth C. and Wagner, Wendy E., The Enlightenment of Administrative Law: Looking inside the Agency for Legitimacy (November 8, 2012). Wake Forest Law Review, Vol. 47, No. 3, 2012; Wake Forest Univ. Legal Studies Paper No. 2173015. Available at SSRN: https://ssrn.com/abstract=2173015

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)

Elizabeth C. Fisher

University of Oxford - Faculty of Law ( email )

St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom
01865 276749 (Phone)

Wendy E. Wagner

University of Texas at Austin – School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

University of Texas at Austin – Kay Bailey Hutchison Center for Energy, Law & Business ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

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