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CONTENTS
FIGURE 8.1 Cases Filed in the U.S. Court of Appeals per 100,000 People,
1945–1985
A systems. It affects us all, not just lawyers and judges. This book
opens the doors of administrative law for students, business people,
and public servants—the non-lawyers whose lives are influenced by
government and law every day.
For liberal arts students we hope this book does two things. It should alert
them to the tremendous scope and power of administrative government, and
it should illuminate how the legal system shapes administrative procedure
and practice. For business students the book provides a guide to the features
of a legal and political process that can often seem like an impenetrable
morass of rules and regulations. And for students who are training to work as
public administrators or policy analysts, we hope this book will help them
navigate the treacherous reefs of administrative law and procedure rather than
run aground through poor legal navigation or, worse, remain at anchor,
paralyzed by legal uncertainties. We hope, in other words, to help people
aspiring to work (or already working) in government and the private sector
acquire knowledge for effective decision making and policy evaluation, so
they will understand how administrative law shapes their choices and can
assess its impact on furthering democratic values.
We have tried for the most part to write about administrative law as clearly
as possible for non-law students. Part I presents a working definition of
administrative law and introduces a theoretical framework for evaluating
modern administrative law. Part II reviews some of the major issues in the
field, and Part III illustrates these issues in action. Part IV draws upon the
knowledge readers have gained in the first three parts to evaluate the politics
of contemporary administrative law issues, such as privatization and
outsourcing of government services.
None of us can make much conceptual sense of law and politics until we
are able to fit what we see into some theoretical structure. Therefore, this
book emphasizes more than other texts what the rule of law means and how it
operates in administrative governance. We believe this focus will aid
practitioner and academician alike. You will find our approach introduced
and sketched out in Part I, referred to in passing in Parts II and III, and fully
defended in Part IV.
Judging by the theories of law and politics presented in this book, we
believe that administrative law today lacks a unifying philosophical basis.
Some may count the field’s lack of a clear normative voice as a virtue on the
ground that it permits a more fluid, pragmatic, and incremental evolution of
policy. We disagree. This book, in other words, does take sides. At least users
who disagree with our positions will have what we hope are evaluative
standards to argue against (e.g., fairness and equality in the rule of law,
transparency, and accountability).
The hardest part of developing this book was deciding what to leave out.
We are writing here for non-lawyers about a murky, sprawling, and arguably
underdeveloped branch of law, one rich with issues about which law
professors and judges abidingly disagree, and rife with topics that have a
reputation for being (next to “estates in land”) some of the most highly
technical material taught in law school. Thus, much has been omitted.
Teachers and readers with strong administrative law backgrounds will have
to accept that many of the more interesting legal puzzles—the Administrative
Procedure Act’s labyrinthine definitions of rules and rulemaking, orders, and
adjudication—do not appear here, precisely because they are so interesting to
law professors. Given those objectives, we have de-emphasized some classic
cases like Crowell v. Benson because the complicated contexts from which
they arise are likely to confuse non-lawyers, and because the law they
represent has little practical significance in the present day. We have tried to
include cases easily digested by readers who have not had formal legal
training. And we have tried to present cases featuring a diverse array of the
federal and state agencies whose work those cases reveal in order to expand
students’ appreciation for the scope and complexities of the administrative
process.
A few practical suggestions for learning and teaching from this book may
be helpful. First, do not be surprised if the material as organized by chapter is
not in the end as neatly divided as it appears from the table of contents. In
part, this intersection and overlapping of topics follows from the nature of
administrative law itself. Thus, when you reach chapter 9 you will find
material on administrative enforcement that recalls the discussion of
administrative information-gathering found in chapter 5.
Second, because of the richness and diversity of administrative law,
teachers are often tempted to focus on the many extant exceptions and
qualifications to more generally accepted rules. This approach can create a
choppy text and a discontinuous course of study that students may find
difficult to follow. We have tried to avoid this by placing some of the
contradictory but nevertheless important material in the “Exercises” sections
at the end of each chapter. We hope the chapter-end exercises and questions
stimulate and aid effective teaching. Please be aware, however, that some of
these sections make points that teachers and students will not want to neglect
and that they will not find in the body of the book.
Third, we have organized Part II roughly to follow the steps of an actual
contested administrative action, from information gathering to judicial
review. College students and graduate students in masters of public
administration programs much appreciate this sequence. However, teachers
who put judicial review at the theoretical front of their courses, in the manner
of Gellhorn, Byse, Strauss, Rakoff, and Schotland, for example, may prefer
that students at least skim chapter 10 as they read chapters 2, 3, and 4. As we
moved through the steps of the administrative process, we included in chapter
3 material on the current status of the “regulatory takings” doctrine, such as
state legislative actions following the Supreme Court’s decision in Kelo
(2005) and research on the ideologies and institutions of the private property
movement. Chapter 4 looks beyond the era of administrative discretion to the
post-Chevron legal developments. Here we have substantially revised our
discussion of how administrators and judges interpret legislative statutes. We
did so in order to clarify the philosophical, political, and economic stakes that
help explain why the Supreme Court—the Roberts Court—is divided on a
judicial theory of statutory interpretation, which ultimately regulates the
scope of administrative discretion. In addition, we want students to become
familiar with how different political actors in administrative governance
(executive, legislative, administrative, and judicial) mobilize and present their
competing theories of statutory interpretations in the context of particular
policy issues, such as the Affordable Care Act.
Fourth, throughout this new edition we give concrete examples of
challenges to agency overreach. Specifically, chapter 5 examines the role
administrative agencies perform in making information about our
government public under the Freedom of Information Act, while also secretly
collecting personal data from our emails and cell phones without establishing
prior probable cause (National Security Agency’s warrantless search and
seizure).
Fifth, while agency overreach may be particularly acute when it comes to
the government gathering electronic information, in this edition we continue
to focus on the enduring problem of non-enforcement and government
inaction in areas such as environmental regulation, consumer protection,
occupational health and safety, and antidiscrimination in education. In
chapter 7 we discuss a variety of administrative hearing procedures that may
reverse the trend toward agency inaction. For example, what are the merits of
models that provide Administrative Law Judges (ALJs) with resources to
hold agencies accountable for their inaction? In addition to public interest
groups seeking to judicially mandate hearing procedures to require that
agencies enforce their own rules, this chapter pays particular attention to the
federal government’s (Department of Education) new Title IX policy on
sexual assault, harassment, and other forms of sexual misconduct in
education and asks readers to consider whether or not it produces responsive,
regulatory enforcement. This perspective allows us to see beyond the
particular policy preferences of any one presidential administration to the
fundamental role of executive power in administrative policymaking and law.
Finally, as this edition of our book goes to press, the reign of a free-market
regulatory paradigm continues to be largely unabated over the last thirty-five
years, although it has not only fallen out of favor with American voters but
also with the automobile, banking, and insurance industries that long
advocated for deregulation. Major multinational corporations from these
same industries sought and received government financial bailouts on the eve
of the Great Recession. However, in the second term of the Obama
administration, the political will to respond to the structural inequalities and
shortcomings of free-market regulatory policies has yet to coalesce. We
continue, therefore, to highlight a growing trend by some states to institute
stricter pollution controls than those imposed under federal law and to raise
the minimum wage. Equally important, of course, are the policy outcomes of
administrative governances. Chapter 13 focuses on privatization as it has
been institutionalized under the rubric of free market economic self-
regulation. From the privatization of prisons to outsourcing the provision of
other government services, our commitment is to prepare students for a new
era of administrative law disputes, their attendant legal interpretations, and
the implications they will have on the direction of political change.
ACKNOWLEDGMENTS
his new edition builds on the talents of those colleagues who worked
« Mon âme hors de cette ombre qui gît flottante sur le plancher
Ne s’élèvera jamais plus. » [113]
[113] Dernière strophe du Corbeau.
PREMIÈRE PARTIE
Préface 9
Lamennais : la crise de sa chute 15
Une auxiliatrice de Lacordaire : Anna Moës 39
Le catholicisme de Barbey d’Aurevilly 68
Villiers de l’Isle-Adam 107
Le Greco de Maurice Barrès 141
Maurice Barrès et sa pensée religieuse dans la Colline
inspirée 150
Georges Dumesnil 158
Histoire de mon amitié pour Camille Saint-Saëns 170
DEUXIÈME PARTIE