As someone whose research focuses on federal administrative law but teaching package also includes state and local government law, I love following the scholarship on state administrative law. The scholars who write on state administrative law—Miriam Seifter comes immediately to mind—are so creative. Few administrative law scholars, however, focus on local governments. That’s a real shame because the local government law field is deep and vibrant. Having taught local government as an administrative law scholar, I see countless opportunities for the two fields to interact, learn from each other, and draw on the theory and doctrine that have developed independently in our siloed fields.
Against that backdrop, I am excited to see Maria Ponomarenko emerge as a newer voice that writes at the intersection of administrative law and local government law. I thought I’d briefly flag her latest article, Substance and Procedure in Local Administrative Law, which is forthcoming in the University of Pennsylvania Law Review. Here’s the abstract:
Although administrative law scholars have devoted thousands of law review pages to debating the optimal mix of substantive, procedural, and political constraints on federal agency decision-making, when it comes to local administrative agencies, these questions have largely gone unexplored. The lack of attention to local administrative agencies is striking given the sheer breadth of local administration, and the important role that local agencies play in individuals’ day-to-day lives. This Article begins to fill this gap. In doing so, it takes as its jumping off point the familiar set of arguments in federal administrative law about the role of procedures and substantive judicial review in the administrative process, and it considers to what extent these same arguments might apply to local agencies as well. It argues that substantive judicial review may be especially important at the local level, and that many of the concerns that scholars have expressed about the distorting effects of judicial review are less applicable to the local context. At the same time, it argues that procedural requirements—such as notice-and-comment rulemaking—may be much less effective at ensuring the quality of local agency decision-making, particularly when procedures are not backed by the threat of substantive judicial review.
This article is such a great read. As the abstract suggests, it is an ambitious project to assess whether/how to import federal administrative law substantive procedures and judicial review provisions to local agencies.
There are many interesting questions to explore here. For instance, channeling Tocqueville, are citizens more involved at the local level, such that procedures and judicial review should be adapted to take account of that local participation? (Spoiler alert: The answer is no doubt “it depends!,” as the world of local agencies is vast and varied.) Are state trial courts up to the task of imposing some version of federal administrative law judicial review? Does it change the calculus that state trial court judges are often elected? Or that their dockets often are quite different from what we’d see in federal court? Do these factors encourage some local agency decisions to be directly reviewed by state appellate courts, as Congress sometimes chooses to do in the federal context? Or perhaps, as some state legislatures have done in the context of ratemaking, referendum/initiative petitions, and so forth, should state supreme courts have direct review of some of these local administrative actions? Finally, should these administrative law principles just apply to local administrative agencies or also local governments that may exercise home rule authority (or be constrained by Dillon’s rule)? (Conversely, how can local government law principles like home rule add value to administrative law?)
Professor Ponomarenko’s latest article raises and engages with so many fascinating questions, many of which will no doubt be further explored in subsequent work. I hope her work will spark more scholarly attention to local administrative law within the administrative law field, and I hope even more that we’ll see more interaction and collaboration between the fields of administrative law and local government law. Definitely go read the current draft of the article here.