Litigation-Fostered Bureaucratic Autonomy: Administrative Law Against Political Control

56 Pages Posted: 28 Mar 2013

See all articles by Daniel Walters

Daniel Walters

University of Pennsylvania Law School; University of Wisconsin - Madison

Date Written: March 8, 2013

Abstract

The idea of political control dominates our understanding of both what administrative law does and what it should do. This emphasis on political control, however, downplays the important ways that administrative law facilitates resistance to political control in administrative agencies. In this article, I offer studies of two instances in which agencies harnessed the power of seemingly standard administrative law litigation to resist the imposition of policies by political leadership. I classify these kinds of modes of resistance as instances of “litigation-fostered bureaucratic autonomy” and flesh out the mechanisms that drive the process. Acknowledging the role of such modes of resistance is critical to administrative law scholarship insofar as it casts some doubt on the empirical underpinnings of a principal-agent understanding of the function of administrative law. It also poses a potential challenge to the democratic justification of the administrative state, though I ultimately conclude that modes of resistance such as that demonstrated by litigation-fostered bureaucratic autonomy can help curb the excesses of political principals and encourage public-interest-minded deliberation about issues that are both highly technical and value laden.

Suggested Citation

Walters, Daniel, Litigation-Fostered Bureaucratic Autonomy: Administrative Law Against Political Control (March 8, 2013). Journal of Law and Politics, Vol. XXVIII, p. 129, 2013. Available at SSRN: https://ssrn.com/abstract=2230564

Daniel Walters (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
815-543-6266 (Phone)

HOME PAGE: http://https://www.law.upenn.edu/cf/faculty/danwalt/

University of Wisconsin - Madison ( email )

716 Langdon Street
Madison, WI 53706-1481
United States

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