Last week I blogged about the first paper from Andrew Hammond and my Kisor dataset. This week Andrew and I have posted to SSRN a draft of a shorter, more theoretical essay, entitled The End of Administrative Pragmatism?, which explores how Justice Kagan’s administrative law jurisprudence arguably represents the best of administrative pragmatism (as Jeff Pojanowski defines that theory). This essay will be part of a terrific Loyola University Chicago Law Journal symposium issue on the demise of Chevron deference and the future of the administrative state.

Here’s the abstract:

For decades, the predominant theory in administrative law has been “administrative pragmatism”—i.e., a vision based on rules and doctrines that balance the interests in empowering agencies to fulfill their statutory mandates while constraining agencies from abusing the discretion Congress has delegated to them. In recent years, however, we have seen an “anti-administrativist” turn at the Supreme Court and, at least to some extent, in the rest of the federal judiciary. Although administrative pragmatism is no longer the predominant theory at the Court, that does not mean it has died. Administrative pragmatism remains the principal theory among administrative law scholars, agency officials, and many federal judges. But its continuing vitality will depend on how the theory evolves to respond to the anti-administrativist turn at the Supreme Court.

In our contribution to this symposium issue on administrative law, we argue that Justice Kagan’s articulation of administrative pragmatism in Kisor v. Wilkie captures a rich and nuanced theory of administrative pragmatism. Yet, based on our review of every judicial decision citing Kisor during its first five years of existence, lower courts have not appreciated, much less embraced, Justice Kagan’s vision. Scholars too could and should revisit what Justice Kagan crafted in Kisor. When properly understood, Justice Kagan’s vision addresses most of the concerns raised by administrative skeptics about administrative law and regulatory practice today. And yet it still preserves the administrative state’s critical role in delivering effective governance and ensuring the implementation of Congress’s commands.

You can download the current draft of the essay here.