Dædalus, The Journal of the American Academy of Arts and Sciences, just published a fascinating special issue that explores the future of the administrative state. Mark Tushnet organized the issue, and it includes contributions from Bernie Bell, Cary Coglianese, Susan Dudley, Sean Farhang, Jeremy Kessler, David Lewis, Michael Neblo, Aaron Nielson, Beth Simone Noveck, Neomi Rao, Peter Strauss, Cass Sunstein, and Avery White. My contribution is entitled Constraining Bureaucracy Beyond Judicial Review, and is available here. The full issue is available here.
Here is the press release:
CAMBRIDGE, MA — (See Dædalus online) Shortly after the 2016 election, presidential advisor Stephen Bannon vowed to pursue the “deconstruction of the administrative state,” signaling the new administration’s view that parts of government itself had stolen power from the American people. But while the administrative state may have been a new term for many Americans, debates around this so-called fourth branch of government have persisted since its origins in the late nineteenth century: Is the administrative state constitutional? Who controls it? What limits should it face? And is it time for significant change?
The Summer 2021 issue of Dædalus on “The Administrative State in the Twenty-First Century: Deconstruction and/or Reconstruction,” guest edited by Mark Tushnet (Academy Member; Harvard University), features fourteen essays by scholars in the fields of law, political science, public policy, public administration, governance, and ethics on the future of the modern administrative state—the more than two million civilian employees working largely in government agencies and institutions such as the Environmental Protection Agency and the Centers for Disease Control and Prevention. Three options emerge for the future of the administrative state: deconstruction via regulation and control by the legislature; tweaking, which would modify existing doctrine without making significant changes; and reconstruction, which might involve adopting ever more flexible modes of regulation, including direct citizen participation in making and enforcing regulation.
The Summer 2021 issue of Dædalus on “The Administrative State in the Twenty-First Century: Deconstruction and/or Reconstruction” features the following essays:
Introduction: The Pasts & Futures of the Administrative State
Mark Tushnet (Academy Member; Harvard University)
How the Administrative State Got to This Challenging Place
Peter L. Strauss (Academy Member; Columbia Law School)
Milestones in the Evolution of the Administrative State
Susan E. Dudley (George Washington University)
Legislative Capacity & Administrative Power Under Divided Polarization
Sean Farhang (University of California, Berkeley)
Is the Failed Pandemic Response a Symptom of a Diseased Administrative State?
David E. Lewis (Vanderbilt University)
Replacing Bureaucrats with Automated Sorcerers?
Bernard W. Bell (Rutgers University)
Administrative Law in the Automated State
Cary Coglianese (University of Pennsylvania)
The Innovative State
Beth Simone Noveck (New York University)
Deconstruction (Not Destruction)
Aaron L. Nielson (Brigham Young University)
Constraining Bureaucracy Beyond Judicial Review
Christopher J. Walker (The Ohio State University; American Bar Association)
Capturing the Public: Beyond Technocracy & Populism in the U.S. Administrative State
Avery White (The Ohio State University) & Michael Neblo (The Ohio State University)
The Uncertain Future of Administrative Law
Jeremy Kessler (Columbia University) & Charles Sabel (Columbia University)
Some Costs & Benefits of Cost-Benefit Analysis
Cass R. Sunstein (Academy Member; Harvard University; U.S. Department of Homeland Security)
The Hedgehog & the Fox in Administrative Law
Neomi Rao (U.S. Court of Appeals)