Administrative Law

by Edley, Christopher F.

• ISBN13: 9780300040791
• ISBN10: 0300040792
• Format: Hardcover
• Copyright: 1990-05-01
• Publisher: Yale Univ Pr

Summary

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.

Table of Contents

Preface	ix
PART I The Structure of Administrative Law	1	(129)
Introduction: The Discretion Problem and the Continuing Importance of Separation of Powers Theory	3	(10)
The Project of Administrative Law	4	(3)
The Plan of This Work	7	(3)
Alternative Projects for Administrative Law	10	(3)
An Expository Essay: The Trichotomy of Politics, Science, and Adjudicatory Fairness	13	(59)
Distinctive, Separated Modes of Decision Making	13	(7)
The Normative Foundation of the Trichotomy	20	(9)
Distinguishing Law, Fact, and Policy	29	(7)
The Rule Making-Adjudication Distinction	36	(12)
Presumptions versus Experience: The Trichotomy's Descriptive Failings	48	(24)
The Trichotomy's Conceptual Failings	72	(24)
Collapsing Categories: Science, Fairness, and Politics; Fact, Law, and Policy	74	(9)
The Attributive Duality Created by Positive and Negative Norms	83	(13)
Scope of Judicial Review	96	(34)
The Conceptual Difficulty of Sorting into Fact-Law-Policy Categories	98	(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