Neoclassical Administrative Law
Harvard Law Review, Vol. 133, 2019, Forthcoming
54 Pages Posted: 4 Mar 2019
Date Written: March 1, 2019
This article introduces an approach to administrative law that reconciles a more formalist, classical understanding of law and its supremacy with the contemporary administrative state. Courts adopting this approach, which I call “neoclassical administrative law,” are skeptical of judicial deference on questions of law, inclined to give more leeway to agencies on questions of policy, and attend more closely to statutes governing administrative procedure than contemporary doctrine. This theory is “classical” in its defense of the autonomy of law and legal reasoning, separation of powers, and the supremacy of law. These commitments distinguish it from theorists who would have courts make a substantial retreat in administrative law. It is “new” in that, unlike other more classical critics of contemporary administrative law, it seeks to integrate those more formal commitments with the administrative state we have today—and will have for the foreseeable future.
Keywords: administrative law, judicial review, legal theory
JEL Classification: K00, K20, K40
Suggested Citation: Suggested Citation