Essay: The Administrative Process from the Bottom Up: Reflections on the Role, If Any, for Judicial Review

59 Pages Posted: 6 Jun 2018

See all articles by Neil K. Komesar

Neil K. Komesar

University of Wisconsin Law School

Wendy E. Wagner

University of Texas at Austin – School of Law

Date Written: December 1, 2017

Abstract

This Essay offers a bottom-up analysis of judicial review in the administrative state that focuses on the dynamics of participation. A bottom-up perspective supplements the more conventional top-down analysis of agencies and the courts by drawing attention to the important role that different constellations of participants play in the functioning of the system. This pattern of participation helps determine the behavior of the political and administrative processes. It also helps determine the behavior of the adjudicative process and, therefore, of judicial review. As with the analysis of judicial review of the political process under the Constitution, participatory realities must be taken seriously in analyzing the judicial review of the administrative process. After drawing out the primary variables and forces that shape participation in agencies and courts, the essay considers various reforms and adjustments that might improve bottom-up institutional functioning in the future.

Keywords: administrative law, judicial review, participation

JEL Classification: K23

Suggested Citation

Komesar, Neil K. and Wagner, Wendy E., Essay: The Administrative Process from the Bottom Up: Reflections on the Role, If Any, for Judicial Review (December 1, 2017). Administrative Law Review, Vol. 69, 2017; U of Texas Law, Public Law Research Paper; Univ. of Wisconsin Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=3182883

Neil K. Komesar

University of Wisconsin Law School ( email )

975 Bascom Mall
Madison, WI 53706
United States

Wendy E. Wagner (Contact Author)

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

727 East Dean Keeton Street
Austin, TX 78705
United States

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