NEOCLASSICAL ADMINISTRATIVE LAW

• Published in: Harvard law review 2020-01, Vol.133 (3), p.852-919
• Main Author: Pojanowski, Jeffrey A.
• Format: Article
• Language: English
• Subjects: Administrative law; CONGRESS; Constitutional law; CONSTITUTIONS; JURISPRUDENCE; SEPARATION OF POWERS; U.S. states
• ISSN: 0017-811X; 2161-976X

This Article introduces an approach to administrative law that reconciles a more formalist, classical understanding of law and its supremacy with the contemporary administrative state. Courts adopting this approach, which I call “neoclassical administrative law,” are skeptical of judicial deference on questions of law, tend to give more leeway to agencies on questions of policy, and attend more closely to statutes governing administrative procedure than contemporary doctrine does. As a result, neoclassical administrative law finds a place for both legislative supremacy and the rule of law within the administrative state, without subordinating either of those central values to the other. Such an approach reconciles traditional notions of the judicial role and separation of powers within the administrative state that Congress has chosen to construct and provides a clearer, more appealing allocation of responsibilities between courts and agencies. This theory is “classical” in its defense of the autonomy of law and legal reasoning, separation of powers, and the supremacy of law. These commitments distinguish it from theorists that would have courts make a substantial retreat in administrative law. It is “new” in that, unlike other more classical critiques of contemporary administrative law, it seeks to integrate those more formalist commitments with the administrative state we have today — and will have for the foreseeable future.