Second-Order Participation in Administrative Law

66 Pages Posted: 20 Sep 2015 Last revised: 29 Jul 2016

Miriam Seifter

University of Wisconsin Law School

Date Written: September 18, 2015

Abstract

Administrative law has long been fixated on public participation. Countless procedures and doctrines, along with their underlying normative theories, embrace participation as a crucial part of what makes the administrative state legitimate. It is well-recognized that interest groups dominate this participation. Yet the implications of interest-group dominance have been largely overlooked. Administrative law takes virtually no notice of how the dependence on interest groups affects the claimed value of participation.

This Article argues that a close study of interest groups is essential to understanding, and ultimately reforming, administrative participation. It introduces the concept of second-order participation to describe the internal operation of interest groups. It then shows that second-order participation complicates every leading justification of administrative participation and the many practices built atop those justifications. These traditional conceptions of participation cohere only if groups actually speak for a membership, or at least provide information about how and for whom they work. Yet interest groups are seldom transparent, and, as this Article shows, they fall along a spectrum of internal governance with varying degrees of principal-agent slack — with the most effective lobbyists tending to have the greatest slack or no members at all. Attending to second-order participation thus provides a new framework for understanding participation, and it illuminates a path for reform.

Keywords: administrative law, participation, interest groups

Suggested Citation

Seifter, Miriam, Second-Order Participation in Administrative Law (September 18, 2015). 63 UCLA Law Review 1300 (2016); Univ. of Wisconsin Legal Studies Research Paper No. 1364. Available at SSRN: https://ssrn.com/abstract=2662504

Miriam Seifter (Contact Author)

University of Wisconsin Law School ( email )

975 Bascom Mall
Madison, WI 53706
United States

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