Second-Order Participation in Administrative Law
66 Pages Posted: 20 Sep 2015 Last revised: 29 Jul 2016
Date Written: September 18, 2015
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
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