Administrative Law

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ISBN: 9780300052534 | 0300052537
Cover: Paperback
Copyright: 7/29/1992

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This seminal book presents a fundamental reconsideration of modern American administrative law which, says Christopher F. Edley, Jr., is largely a failure. He discusses why and how this is so and argues that courts should abandon their guiding principle of applying legal doctrines to control the discretion of unelected bureaucrats and should pursue instead the direct promotion of sound governance.

Preface

PART I The Structure of Administrative Law

(129)

Introduction: The Discretion Problem and the Continuing Importance of Separation of Powers Theory

(10)

The Project of Administrative Law

(3)

The Plan of This Work

(3)

Alternative Projects for Administrative Law

(3)

An Expository Essay: The Trichotomy of Politics, Science, and Adjudicatory Fairness

(59)

Distinctive, Separated Modes of Decision Making

(7)

The Normative Foundation of the Trichotomy

(9)

Distinguishing Law, Fact, and Policy

(7)

The Rule Making-Adjudication Distinction

(12)

Presumptions versus Experience: The Trichotomy's Descriptive Failings

(24)

The Trichotomy's Conceptual Failings

(24)

Collapsing Categories: Science, Fairness, and Politics; Fact, Law, and Policy

(9)

The Attributive Duality Created by Positive and Negative Norms

(13)

Scope of Judicial Review

(34)

The Conceptual Difficulty of Sorting into Fact-Law-Policy Categories

(7)

The Futile Search for Deference Formulas

105

(5)

The Causes of Murky Deference Formulas

110

(5)

Examples: Case Law Confusion in Scope of Review Analyses

115

(10)

Conclusions on Conceptual Failings of the Trichotomy and Scope of Review: Toward Judgment or Nihilism?

125

(5)

PART II Rethinking Administrative Law

130

(135)

Unsuccessful Remedies for the Futility of Administrative Law

133

(36)

The Perspective of Rule of Law/Legal Process Constraints

135

(12)

The Perspective of Politics: Interest Group Representation Theory

147

(8)

The Perspective of Expert, Ideal Administration

155

(7)

The Allure of Pragmatism and Reasonableness

162

(7)

A Constructive Essay: ``Harder-Look'' Review

169

(44)

The Accommodation of Politics and the Rule of Law: The Puzzle Described

170

(14)

Two Conceptions: Politics-as-Preferences versus Politics-as-Market

184

(3)

Incremental Lessons from the Trichotomy: Avoiding the Extremes

187

(12)

An Application: Harder-Look Review of Deregulation and Policy Shifts

199

(7)

Two Other Puzzles: Accommodation of Scientific Uncertainty and the Construction of Procedural Norms

206

(7)

A Speculative Essay: From Trichotomy to Trio-And Sound Governance Review

213

(52)

Redefining the Project of Administrative Law

215

(6)

Defining Sound Governance: The Trio of Decision Making Methodologies

221

(13)

Legitimating the Role of Courts: Multiple Forums and Institutional Competence

234

(25)

Conclusion: The Future Role of Law and Doctrine

259

(6)

Index

265

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Administrative Law

Summary

Table of Contents

Supplemental Materials