Last week over at Jotwell, I reviewed Kevin Stack’s terrific new article The Internal Law of Democracy, which was recently published in the Vanderbilt Law Review. Here’s a snippet of that review:

In Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 524 (1978), the Supreme Court famously announced that “[a]gencies are free to grant additional procedural rights [beyond those required by the Administrative Procedure Act] in the exercise of their discretion, but reviewing courts are generally not free to impose them if the agencies have not chosen to grant them.” In an administrative law course, we focus somewhat myopically on the second half of the statement—that courts cannot impose more procedural requirements on federal agencies than Congress has commanded by statute. But the first part of the sentence is just as important. It is in Vermont Yankee’s “white space,” as Emily Bremer and Sharon Jacobs aptly call it, that so much of the action in administrative law takes place. This is the world of internal administrative law.

Historically, internal administrative law has often been neglected in the literature, with some exceptions such as Jerry Mashaw’s majestic Bureaucratic Justice. In recent years, however, we have seen more scholarly attention, which is chronicled in Gillian Metzger and Kevin Stack’s 2017 article Internal Administrative Law. I have contributed some to this literature, trying to operationalize internal administrative law and exploring how it can constrain and empower regulatory activities outside of courts. A recent addition to the literature is well worth a read and the subject of this review: Professor Stack’s article The Internal Law of Democracy is a spectacular exploration of how internal law works in state and local governments, in the context of election administration. There is so much to like (lots) about this article, and it is a must-read for scholars of administrative law, election law, and local government law as well as political science and public administration.

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The Internal Law of Democracy demonstrates the value of administrative law scholars shifting their attention away from the federal bureaucracy and toward state and local government law. In that sense, it reminds me a lot of the terrific scholarship by Miriam Seifter and Maria Ponomarenko, among others. The article also shows the value of the fields of state and local government for administrative law. I wish our fields interacted more; local government law in particular has so much to offer to our field in terms of theory and framing. I hope this article sparks more cross-pollination and interaction between the fields. Administrative law would be better for it.

You can read the full review over at Jotwell here. And go download and read Professor Stack’s full article here.