The Procedure Fetish

79 Pages Posted: 30 Mar 2019 Last revised: 12 May 2019

See all articles by Nicholas Bagley

Nicholas Bagley

University of Michigan Law School

Date Written: March 4, 2019

Abstract

The strict procedural rules that characterize modern administrative law are said to be necessary to sustain the fragile legitimacy of a powerful and constitutionally suspect administrative state. We are likewise told that they are essential to public accountability because they prevent factional interests from capturing agencies. Yet the legitimacy-and-accountability narrative at the heart of administrative law is both overdrawn and harmful. Procedural rules have a role to play in preserving legitimacy and discouraging capture, but they advance those goals more obliquely than is commonly assumed and may exacerbate the very problems they aim to fix. This Article aims to draw into question the administrative lawyer’s instinctive faith in procedure, to reorient discussion to the tradeoffs at the heart of any system designed to structure government action, and to soften resistance to a reform agenda that would undo counterproductive procedural rules. Administrative law could achieve more by doing less.

Keywords: administrative law

Suggested Citation

Bagley, Nicholas, The Procedure Fetish (March 4, 2019). 118 Michigan Law Review, Forthcoming; U of Michigan Public Law Research Paper No. 629. Available at SSRN: https://ssrn.com/abstract=3347377 or http://dx.doi.org/10.2139/ssrn.3347377

Nicholas Bagley (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

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