Administrative Law

Rethinking Judicial Control of Bureaucracy

Christopher Edley

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July 29, 1992
283 pages, 6 1/8 x 9 1/4
ISBN: 9780300052534
Paper

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This seminal book presents a fundamental reconsideration of modern American administrative law. According to Christopher Edley, the guiding principle in this field is that courts should apply legal doctrines to control the discretion of unelected bureaucrats. In practice, however, these doctrines simply give unelected judges largely unconstrained—and inescapable—discretion. Assessed on its own terms, says Edley, administrative law is largely a failure. He discussed why and how this is so and argues that law should abandon its obsession with bureaucratic discretion and pursue instead the direct promotion of sound governance.
 
Edley demonstrates that legal analyses of separation of powers and of judicial oversight of agencies implicitly use three decision-making paradigms: politics, scientific expertise, and adjudicatory fairness. Conventional wisdom maintains, for example, that judges should hesitate to question the political choices of legislators and the expertise of administrators, but need not be so deferential in addressing questions of law. Such judicial efforts to police governance have largely failed because, as Edley shows in several contexts, they attempt to appraise decision-making paradigms as though they were separable when in fact the important decisions of both judges and political officials combine elements of politics, science, and fairness. According to Edley, unsustainable boundaries among these paradigms cannot be a satisfactory basis for deciding when a court should interfere. Law must stop focusing on  separation of powers and instead direct attention to such issues as bureaucratic incompetence, systemic agency delay, and political bias.

"This book raises and advances the debate on the workings of administrative agencies and the courts. It is a well-documented and serious piece of legal scholarship which presents a comprehensive and cohesive view of administrative law and theory, discussing the larger issues surrounding administrative law discussed in law school which become largely abandoned in the actual practice of law. As such I found the book more interesting than a treatise on administrative law. . . . The book is a worthy complement to such a treatise."—Jon Fiegen, Legal Publishing Preview

"Christopher Edley has written a fundamental challenge to the traditional project of administrative law."—John C. Hughes, Perspectives on Political Science

"Drawing upon extensive experience as a student of law and public policy, federal bureaucrat, political strategist, and law professor, Edley has written a book of broad sweep that probes the underlying causes of administrative law's doctrinal malaise and offers a provocative remedy."—Colin S. Diver, Michigan Law Review

"This short review can hardly do justice to the richness and versatility of Edley's analysis."—Francis E. Rourke, Political Science Quarterly

"I strongly recommend this book. . . . Read as a text to legitimate a reconstruction of judicial ideology under a hypothetical Democratic president who listens to law professors, this book satisfies throughout."—Lief Carter, Journal of Politics

"[An] important reassessment of administrative law. . . . [Edley's] evidence is tightly organized and convincing. . . . Political scientists will find this book an artful presentation of analytical structures underlying administrative law doctrine. It covers an amazing breadth of doctrine including ex parte communications, efforts to distinguish rule making and adjudication, abuse of discretion, and so on. The book offers a fluid analysis of doctrine which one can rarely, if ever, say about case law studies of administrative law."—Christine B. Harrington, Law and Politics Book Review

"An excellent piece of work. Edley is grappling with exactly the right issue and has made a major advance."—Jerry L. Mashaw 

Received Honorable Mention in the Association of American Publishers’ Professional and Scholarly Division 1990 Awards Program for Excellence in the Legal and Accounting Practice Category