On Capturing the Possible Significance of Institutional Design and Ethos

Peter L. Strauss, Columbia Law School


This paper hopes to open a conversation about what strike me as the largest and least well appreciated of these failures of contextualization. American law students, lawyers and judges seem rarely to think about issues of institutional design and ethos when considering the issues of administrative law. For judges reviewing administrative decisions, the briefs and arguments are often limited to the particular issues of the case.They are given little sense of the broad context in which it arises – the agency responsibilities in their largest sense, the institutional issues that may be at stake, how these particular issues may fit into the general statutory framework for which the agency is responsible, and so forth.

Written for a conference on comparative administrative law held in Montpellier France in late spring of 2008, the paper explores a number of situations in which, in the author's judgment, institutional features were insufficiently appreciated by the reviewing court; and others in which the proximity to issues judges often encounter in their own work may have prevented ready appreciation of agency differences.