Justification, Legitimacy, and Administrative Governance
Issues in Legal Scholarship, Vol. 3, 2005
Posted: 17 May 2005
Richard Stewart, in his classic article The Reformation of American Administrative Law, argues that the demise of the transmission belt model of administrative governance has created a crisis of agency legitimacy, and he skeptically surveys a range of possible solutions to the legitimacy crisis. I claim that Stewart's skepticism is misguided. It may be true that no feasible administrative structure is democratically legitimate; but it is also true, given the logic of moral justification, that in every choice situation confronted by agency decisionmakers, or by those who design agencies, there is at least one morally permissible and justified choice (perhaps a choice that sacrifices democratic legitimacy for the sake of other values).
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