Today’s Ad Law Reading Room entry is “The Case for Administrative Law Pluralism,” by Lev Menand and Noah Rosenblum, which is forthcoming in Building Democratic Capacity: Essays on Administrative Law’s Futures (Blake Emerson, Joshua Macey, Sabeel Rahman & Bijal Shah eds., Cambridge Univ. Press forthcoming). Here is the abstract:

Federal administrative law is in flux. The Roberts Court has upended its doctrinal foundations, and the Second Trump Administration has flouted its long-settled rules and guiding principles. We cannot know where the case law will land or when practice will reach a new equilibrium. But past arrangements no longer seem inevitable, and the future is suddenly open. This chapter argues that, as we move forward, we should abandon the one-size-fits-all model of administrative law that has dominated the field for the past half-century. This approach has erased differences in political economy, reduced administrative efficiency, and compounded existing inequalities of wealth and power. A better approach would be pluralist. It would start from the premise that optimal legal processes and institutional structures vary depending on the specific characteristics of regulated activities and actors. Supplying the economy with the right amount of money, for example, is a very different challenge from reducing air pollution, evaluating asylum applications, or combatting unfair methods of competition. Administrative law should recognize and even center these substantive differences.

That administrative law should become less transsubstantive, more sensitive to context is a proposition that’s been quietly circulating among the field’s cognoscenti for the last few years, if not longer. Prior work has surfaced the idea in particular contexts—perhaps most prominently with respect to agencies whose work involves deploying force or violence (for an Ad Law Reading Room featuring one such piece, see here). The pluralist impulse can also be detected in other recent developments, including the resurgence of interest in public-utility law.

“The Case for Administrative Law Pluralism” is, as its title suggests, more programmatic. It is a call for a thoroughgoing reassessment of administrative law’s commitment to transsubstantivity and a preview of what a turn to pluralism might look like. It’s a short piece but an extremely valuable one in laying forth a research agenda for what will undoubtedly be a prominent strain of the literature going forward.

The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.