Rulemaking's Promise: Administrative Law and Legal Culture in the 1960s and 1970s

Abstract

This article chronicles the conflict between two of the central policymaking innovations of the 1960s: the rise of both administrative rulemaking and the inclination of courts to review intensely the actions of administrative agencies. In particular, it examines how the United States Supreme Court and the United States Court of Appeals for the District of Columbia (the D.C. Circuit) reacted to the rise of rulemaking. It also explores how Congress and the agencies themselves responded to both the rise of rulemaking and the judiciary's reaction to it. This narrative demonstrates two things. First, it show that the same desire to reform the administrative state generated both the increase in rulemaking and the more demanding judicial review of agency action. Both the agencies and the judiciary reacted in the way that reformers desired: agencies issued more rules and courts supervised agencies more closely. Yet, the two responses were often contradictory. Vigorous judicial review limited the speed and efficiency of informal rulemaking. Consequently, the reform impulse was frustrated. Second, this article explains the causes of the contentious debate that arose among and within the different branches of the federal government about what the appropriate response to the rise of informal rulemaking should be. A combination of politics, institutional self-interest, and legal culture influenced members of Congress, agency officials, and, particularly, the judges of the D.C. Circuit as they developed strategies for coping with this novel form of administrative action. The article argues that the D.C. Circuit's reaction to the rise of rulemaking illustrates the way in which judges transform the abstract principles that make up legal culture (assumptions, for example, about what a judge's role in a democratic government should be) into actual legal doctrines.