Notice & Comment

Farber & O’Connell on Real Administrative Law (AdLaw Bridge Series)

“Either you don’t teach administrative law or I don’t practice administrative law because what you and I do have nothing to do with each other.”
Peter Barton Hutt, Senior Counsel at Covington & Burling, Former FDA Chief Counsel, Harvard Law Lecturer ( Celebrating Peter Barton Hutt’s 20 Years (thus far) at HLS, at 55:50 )
That there is a mismatch between teaching administrative law and practicing administrative law is no doubt well known by anyone who works at a federal agency or represents clients as they navigate the modern regulatory state. It’s probably also fair to say that it’s not an unknown for those of us who teach administrative law. We know that the Administrative Procedure Act (APA) and judicial review of agency action represent only a small fraction of what goes on in the modern administrative state. But many of us struggle with how to more fully capture real administrative law practice in the classroom.
For the teachers (and students) who struggle with this mismatch, I strongly recommend The Lost World of Administrative Law , by Daniel A. Farber and Anne Joseph O’Connell , which was recently published in the Texas Law Review. Here’s their summary of the article:
The reality of the modern administrative state diverges considerably from the series of assumptions underlying the Administrative Procedure Act (APA) and classic judicial decisions that followed the APA reviewing agency actions. Those assumptions call for statutory directives to be implemented by one agency led by Senate-confirmed presidential appointees with decision-making authority. The implementation (in the form of a discrete action) is presumed to be through statutorily mandated procedures and criteria, with judicial review to determine whether the reasons given by the agency at the time of its action match the delegated directions. This is the lost world of administrative law, though it is what students largely still learn.
Today, there are often statutory and executive directives to be implemented by multiple agencies often missing confirmed leaders, where ultimate decision-making authority may rest outside of those agencies. The process of implementation is also through mandates in both statutes and executive orders, where the final result faces limited, if any, oversight by the courts. The mismatch has consequences for the legitimacy and efficacy of the federal bureaucracy: some positive, many negative. Because we do not think a return to the lost world is possible or perhaps even desirable, we propose some possible reforms in all three branches of the federal government to strengthen the match between current realities and administrative law and to further administrative law’s objectives of transparency, rule of law, and reasoned implementation of statutory mandates. We also hope that the proposed reforms can help foster the public interest goals of modern regulation, such as environmental quality or financial stability.
We realize that many scholars and probably at least some judges are aware that formal administrative procedures, official records, and judicial review are only part of the dynamics of administrative governance. But administrative law, as developed by the courts and in governing statutes, has not meaningfully confronted the contemporary realities of the administrative state. It thus risks becoming irrelevant to the quality of governance.
To be sure, there is a lot of excellent scholarship out there on a number of topics they discuss — including the role of OIRA (e.g., here, here , and here ), multi-agency coordination (here), and agency action effectively insulated from judicial review ( here ). (If I were to add to the list of real administrative law not covered well in the classroom, I’d include the rise of less-than-formal adjudications like those in immigration, not to mention state and local administrative law.)  But what makes Farber and O’Connell’s contribution so unique is that it situates all of these developments within the larger context of administrative law in a way that facilitates the teaching and learning of real administrative law in the classroom.
It’s not a surprise that the American Constitution Society selected this article for the 2014 Richard C. Cudahy Award on Regulatory and Administrative Law.  This is a must-read for those of us who teach administrative law. And for everyone else, the article is a nice refresher and dialogue-starter. AsLisa Heinzerling remarks in her terrific response to the article, “Farber and O’Connell  have opened up a valuable conversation about how much of classical administrative law we should keep — and how much we have already lost.”.
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