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...always been related to the difficulty of reconciling the administrative state with traditional American constitutional and political values.
In the Reformation of Administrative Law, Richard Stewart discusses the crisis of legitimacy that characterized the 1960s and 1970s and the reforms that were adopted as result. Stewart was uncertain what might follow the reformation, but now we know. The reformation has been followed by a "counterreformation" that is based on a set of premises that run directly counter for the premises of the reformation. Recently, some scholars, including Professor Stewart, have sought to move beyond the counterreformation, which they find insufficient to produce sound and legitimate government. This literature, like the earlier literature on the reformation and the counterreformation, adopts interest group pluralism as the basis of the administrative process.
This essay evaluates the reformation, the counterreformation and the most recent scholarship through a different lens. As I have in other recent work, I propose that the American tradition of philosophical pragmatism offers the best methodology to evaluate and justify the administrative process. This approach leads me to three general conclusions. First, the reformation has been a greater success than Professor Stewart recognizes in the Reformation or his subsequent work. Second, the counterreformation has produced changes in the administrative process that cannot be justified as either improving the rationality of regulation or the legitimacy of the process. Finally, we should be quite cautious about implementing recent proposals by Professor Stewart and others because the available evidence indicates the methods that they favor only work in some specific contexts.
In The Reformation of American Administrative Law, (1) Richard Stewart brilliantly recognized and evaluated a then new and important development in administrative law. Whereas the traditional model of administrative law was "essentially a negative instrument for checking government power," (2) Professor Stewart explained the reformation as an effort to provide a "surrogate political process" that ensured "fair representation of a wide range of affected interests in the process of administration decision." (3) He was, however, skeptical that federal judges, the prime actors in this transformation, would be able to effectuate an interest group process that produced "outcomes that better serve society as a whole." (4) He foresaw that a more successful interest group process might emerge, but he also thought that the reformation might be an interim state and that some totally new conception of the administrative process would arise. (5)
Now we know. The reformation has been followed by a "counterreformation" that has sought to rationalize regulatory policy and limit the participation of interest groups representing regulatory beneficiaries. (6) These developments constitute a "counterreformation" because they are based on a set of premises that run directly counter to the premises of the reformation. Like its predecessor, the counterreformation addresses the use of administrative discretion, but this time reformers are concerned with unnecessary and unduly costly regulations instead of the failure of the government to protect individuals and the environment. (7) The solution is to temper interest group demands for unreasonable regulation by restricting the ability of regulatory beneficiaries to sue agencies, engaging in skeptical judicial review of new regulations, and requiring agencies to study the costs and benefits and other impacts of regulations before they are promulgated. (8)
The counterreformation is built on a body of scholarship expressing skepticism about prior approaches to regulation and considerable faith in capacity of economic analysts and risk assessors to identify what the public interest requires. More recently, some scholars, including Professor Stewart, have sought to move beyond the counterreformation, which they find insufficient to produce sound and legitimate administrative government. (9) This literature, like the literature on the reformation and counterreformation, adopts interest group pluralism as the basis of the administrative process.
This essay evaluates the reformation, counterreformation, and the work of the new theorists through a different lens. As I have sought to develop in other related work, (10) the American philosophical tradition of pragmatism offers the best methodology to evaluate and justify the administrative process. In this essay, this approach leads me to three general conclusions. First, the reformation has been a greater success than Professor Stewart recognizes in the Reformation or his subsequent work. Second, the counterreformation has produced changes in the administrative process that cannot be justified as either improving the rationality of regulation or the legitimacy of the process. Finally, we should be quite cautious about implementing proposals by the new theorists because the available evidence indicates the methods that they favor only work in some specific contexts.
In this essay, it will not be possible to do more than suggest the general outlines of the arguments that support the previous conclusions. Since this is part of a larger effort, however, my intention is to engage the reader in the possibilities and usefulness of the pragmatic tradition of analysis in conceiving and improving the administrative state.
I. PRAGMATISM & LEGITIMACY The legitimacy of the administrative process ... must be tested pragmatically, by the responsiveness of administrative institutions to the most fundamental principles of a democratic society and by the degree to which institutions meet the nation's highest aspirations for justice and effective government. (11)
In Crisis and Legitimacy, James Freedman characterizes the history of administrative law as constituting an extended sense of crisis over the legitimacy of the regulatory state. (12) The nature of the crisis has differed in each history stage because it has focused on the dominant concern of that era. Eventually, the sense of crisis has subsided with the passage of responsive reforms, only to be succeeded by a differently formulated concern, which in turn produced additional reforms. (13) For Professor Freedman, this pattern suggests the dominant concern in any given period "is in fact only the manifestation of a deeper uneasiness over the place and function of the administrative process in American government...." (14) This deeper uneasiness, he concludes, may explain "why, despite the fact that each generation has fashioned solutions responsive to the problem it has perceived, the nation's sense of uneasiness with the administrative process has persisted." (15)
At bottom, the difficulty is fitting the "round peg" of administrative government into the "square hole" of the nation's constitutional culture. As long as the federal government exercised little regulatory authority, it existed more easily in a constitutional structure that divides the power of government into separate branches and worries about the protection of private property from government intrusions. With the advent of the New Deal and the vast expansion of regulation during the 1960s and 1970s, the country adopted a legal culture that was more oriented to the promotion of social interests than to the protection of private property. (16) Since the attributes of modern administrative government are missing from the basic constitutional design, it was necessary to reinterpret our legal culture to accommodate positive government on a massive scale. Revisionist accounts of our legal culture, however, have failed to displace the original constitutional vision. (17)
The difficulty then is how to synthesize the original constitutional ideals with the demands of positive government? As Professor Freedman indicates, this has been an ongoing project in response to the particular concern of the moment. The prophets of the New Deal offered the ideal of the "neutral expert" to assuage concerns about the enormous power of the federal government, only to accept eventually the Administrative Procedure Act (APA), which offered the rule of law (judicial review and administrative procedures) to protect liberty and property. (18) Then, as the Reformation discusses, the concern switched to the government's lack of accountability to regulatory beneficiaries, and the legal culture was reformed to give regulatory beneficiaries participatory rights similar to those of regulated entities. The counterreformation, as discussed in more detail below, (19) reflects another concern: the propensity of government programs that redress market failures to themselves fail, and like its predecessors, the counterreformation has produced its own set of reforms.
The arrival of a new concern does not entirely extinguish the old ones. (20) Older concerns remain and continue to trouble each new generation of lawyers and scholars. Professor Freedman finds, however, that the older concerns are eventually "regarded as part of the inevitable, even intractable imperfections that attend all human endeavors, requiring periodic attention and adjustment, rather than as glaring anomalies that call into question the central justifications for the administrative process itself." (21)
There is another consequence that Freedman does not mention. The justification for each new reform is piled on top of the previous ones making a jumble of our legal culture. The hope for an all encompassing theory becomes more and more difficult, as each generation finds some way around its particular difficulty. Caught between a rock and a hard place--not willing to give up either positive government or the older constitutional virtues--we attempt to invent new ways of addressing problems of legitimacy as they arise and in light of all that has gone before.
For the pragmatist, none of this is alarming. Pragmatism seeks to measure the worthiness of an idea by its operation in actual experience, rather than by its consistency with the precepts of one particular theory or another. (22) If an idea is successful in addressing a problem, then it is accepted as good and useful, regardless of whether it is consistent in some overall theoretical sense with prior ideas and improvements. (23) The burden of proof, however, is on those who would change existing approaches to a problem to demonstrate on the basis of actual experience that their reforms serve the community better than existing beliefs. (24) Thus, reforms may stand side-by-side with other reforms, even though they are theoretically inconsistent with those reforms. Pragmatism is prepared to accept new ways of addressing problems, even though they make a theoretical jumble of the legal culture.
While pragmatism does not demand consistency with some overarching theory of the administrative state, it does have standards by which success and failure are measured. As Frank Michelman explains, pragmatism "envisions political argument as a kind of ethical argument that is culturally and historically situated and conditioned but that also proceeds...
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