Notice & Comment

Toward a Critical Theory of Administrative Law, by Bijal Shah

I’ll start this post with a bold claim: The core models of analysis in administrative law are inflexible and entrenched, and the scope, quality, and materiality of administrative law scholarship has stagnated as a result.  

Why (you might ask)?

Because outdated beliefs about what constitutes objective legal analysis and intellectual rigor continue to mold research and writing in administrative law.  In other words, administrative law is missing a robust tradition of critical legal studies. Accordingly, administrative law lacks a comprehensive examination of its own contribution to subordination and marginalization.  

In response, one might point to the work of legal historians and poverty law scholars, as well as academics and practitioners focused on housingeducationracefeminismimmigrationlaborLGBT rights, and the institutions of policing, to name a few.  Surely, this is evidence of the critical study of administrative law?

Of course, these important fields bear directly on administrative law.  And yet, scholars speaking either from a higher remove or to a narrow band of administrative law issues are considered more expert than those who discuss the implications of administrative law for minority and oppressed communities.  Accordingly, projects that focus on how administrative law touches on the human experience are often deemed “exceptional” (that is, marginal to administrative law), and their relevance devalued on these grounds.  

For these reasons, those who inhabit the inner circle of administrative law scholarship must expand their sense of which literature speaks to the fundamental.  In this vein, doctrinal administrative law scholars would do well to read the work originating from these fields that employs a critical lens.  Moving forward, flagship administrative law gatherings and written platforms must mark and highlight such scholarship as internal, as opposed to adjacent, to the core project of administrative law. 

The work required to improve scholarship in administrative law will not end there.  After all, administrative law scholars must be careful not to mistake, or even appropriate, the range and inclusivity of other areas of legal academia as our own.  These areas exhibit diversity, albeit highly imperfectly, both as evinced by racialized and other critical theories and among their scholars.  Administrative law, to put it bluntly, does not.  We need more research and analysis originating from establishment administrative law scholars themselves to build, cohere, make explicit and—again—bring into the fold critical perspectives on administrative law theory and doctrine.  I cite thoughtful, relevant examples below.  However, neither the insights nor the methodologies of this work have made their way into the key frameworks and terminology used to practice, contemplate or teach administrative law.

I can’t think of a single component of administrative design that isn’t ripe for a richer critical perspective.  As to structures of governance, agency adjudication is an obvious one, given its themes of fairness and administrative due process, and one that immigration law scholarship has engaged with extensively.  In addition, matters of agency discretion, arbitrariness, accountability, responsiveness and the nature of public participation in the drafting and implementation of policies and regulations are concepts that would be sharpened by employing the tools of crit.

Although administrative constitutionalism has made meaningful inroads to incorporating critical theory, the next step is the development of a comprehensive set of critical perspectives.  The concept of a public/private divide, so important to administrative law, is another logical jumping-off point for the analysis of power in administrative relationships.  As for statutory interpretation, scholars agree that the Administrative Procedure Act (APA) was passed to constrain agency power, and many other statutes define the boundaries of administrative jurisdiction.  To fully interrogate the APA and other legislative impact on governmental and public law dynamics, administrative law scholars must employ a critical perspective. 

The separation of powers and attendant theories of delegation, deference, etc., too, would benefit greatly from serious engagement with critical theory.  Administrative law scholars may enjoy abstract debates on structural constitutionalism.  But too often, with tunnel vision, we engage in antiseptic discussions of the law, claiming to do so in service of theoretical purity.  For instance, those asserting or assuming that formalist or originalist ideologies are neutral, and therefore particularly rational, dismiss the work of grappling with the human stakes as lesser points of discussion (implicitly, on intellectual grounds).  

These approaches to administrative law diminish or ignore the importance of evaluating the wisdom of policies—of segregationtiered access to fundamental rights for citizens, and the exclusion of noncitizens, to name just a few—and privilege anodyne analyses about which governmental entity (e.g., state or federal, elected or unelected) gets to make those decisions (h/t to my colleague).  

In refraining from broader conversations, administrative law scholars risk irrelevancy.  In addition, fidelity to ideology may lead to an irresponsible application of the law—for instance, to insistence on a position that stokes a crisis borne disproportionately by the BIPOC community.  This approach prioritizes an obscure and perhaps idiosyncratic notion of principle over the complex work of implementing a moral framework of administrative law.  Scholarship on the structure of governance would be both of higher quality and greater legitimacy if it engaged in a nuanced critical approach.

I’ll close by making more explicit the point that administrative law, both in academia and practice, suffers from a lack of representative diversity.  I don’t mean to suggest that the burden falls on people of color to broaden the purview of administrative law.  In this context, as elsewhere, both the enhancement of perspective and efforts toward inclusion must be accomplished by the gatekeepers.  Still, the project of a critical theory of administrative law could only be helped by an infusion of under-represented voices.

Bijal Shah is an Associate Professor at Arizona State University Sandra Day O’Connor College of Law

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