Issues in Legal Scholarship

The Reformation of American Administrative Law

Inaugurated March 2005

Introduction

GUEST EDITOR

JOHN F. MANNING, Harvard University

In Reformation of American Administrative Law, 88 Harv. L. Rev. 1667 (1988), Professor Stewart identified a "fundamental transformation" in the role of administrative law in American public law, a transformation that was "largely the handiwork of federal judges." After accounting for the demise of the formalist model of the agencies as mere "transmission belts" of legislative desires and the subsequent New Deal model of agencies as repositories of "expertise," Professor Stewart showed that the emerging conception of administrative law treated agencies as fora for the balancing of competing social interests – places for the conduct of legislative-style politics in microcosm. Stewart's central insight was the most developments in administrative law in the 1960s and 1970s were built around the premises and problems flowing from this "interest representation" model.

According to Professor Stewart, modern judicial doctrine sought to address the fact that participating interests have asymmetrical abilities to organize, and that concentrated interest groups have an easier time than diffuse interests in making themselves heard. In response to the traditional models' inability to deal with this problem of underrepresentation, modern judicial doctrine established a strong presumption of reviewability, expanded the class of interests entitled to a hearing under the Due Process Clause, made it easier to participate in agency hearings, and liberalized rules of standing. Alongside these trends came the further judicial development of a heightened agency obligation of reasoned decision making, which required agencies, inter alia, to give adequate consideration to the input provided by the newly represented interests.

What is striking about Stewart's piece – and what makes it so important to this day – is, first, its deftness in identifying interest representation as the common basis for seemingly disconnected doctrinal developments and, second, its prescience in identifying the pathologies that would flow from the new judicial emphasis. The new multi-polar nature of decision making, Professor Stewart predicted, would result in uncertainty about who represents the public interest, greater formalization of agency procedure, and the imposition of new delays and decision costs. By making questions more complex and poly-centric, moreover, expanded interest representation might in the end simply increase the scope for "ad hoc, discretionary" agency decision making. Although Professor Stewart consciously refrained from proposing definitive solutions to these problems, the penetrating and thoughtful analysis of interest representation and its problems anticipated many of the agendas that would dominate administrative law for a generation – a growing concern with the way administrative law controlled factions, the coming focus on problems of ossification of agency processes, and arguably even the more recent phenomenon of democratic experimentalism. The purpose of this symposium is to allow further reflection on the phenomena that Professor Stewart so insightfully synthesized and then dissected three decades ago.

Philip P. Frickey, Editor
John F. Manning, Guest Editor