This year the Administrative Procedure Act (APA) celebrates its seventy-fifth anniversary this year, and the George Mason Law Review has organized a terrific symposium on the subject. I’ve posted to SSRN a draft of my contribution to the symposium, entitled The Lost World of the Administrative Procedure Act: A Literature Review (yes, inspired by one of my favorite articles, Dan Farber and Anne Joseph O’Connell’s The Lost World of Administrative Law).
This essay is an annotation and literature review of sorts of the APA at 75, which tracks the mismatches between the APA’s text and current administrative law doctrine and regulatory practice. My hope is that this literature review will be of use to students and scholars of administrative law, as well as judges and policymakers who may be interested in modernizing the APA to reflect modern realities in the field.
Here’s the abstract:
Despite dramatic changes in the regulatory state over the last seventy-five years, Westlaw reports that Congress has only amended the Administrative Procedure Act (APA) sixteen times since its enactment in 1946. But that does not mean the APA has remained unchanged. The statutory text bears little resemblance to modern administrative law doctrine and regulatory practice. In response to developments in administrative governance, federal courts have substantially refashioned the APA’s requirements for administrative procedure and judicial review of agency action. As part of the George Mason Law Review’s Administrative Procedure Act at 75 Symposium, this Essay seeks to chronicle these mismatches between statutory text and doctrinal and regulatory reality. It focuses on the APA’s administrative procedure and judicial review provisions, as well as key aspects of presidential administration that operate outside of the APA. Through presenting this annotation and literature review of the lost world of the APA, the Essay identifies potential areas for further legislative reform, judicial engagement, and scholarly attention—to better conform administrative practice to the text of the APA.
The draft is available here. Comments are definitely welcome.