Document Type

Article

Publication Date

2012

Disciplines

Administrative Law | Common Law | Law

Center/Program

Center for Constitutional Governance

Abstract

This Foreword begins with the descriptive claim that much of administrative law is really administrative common law: doctrines and requirements that are largely judicially created, as opposed to those specified by Congress, the President, or individual agencies. Although governing statutes exert some constraining force on judicial creativity, the primary basis of these judge-fashioned doctrines lies in judicial conceptions of appropriate institutional roles, along with pragmatic and normative concerns, that are frequently constitutionally infused and developed incrementally through precedent. Yet the judicially created character of administrative law is rarely acknowledged and often condemned by courts.

Turning from descriptive to more normative, this Foreword argues for explicit judicial recognition and acceptance of administrative common law. Administrative common law serves an important function in our separation of powers system, a system that makes it difficult for Congress or the President to oust the courts as developers of administrative law and makes administrative common law inevitable. Moreover, courts have employed administrative common law as a central mechanism through which to ameliorate the constitutional tensions raised by the modern administrative state. Administrative common law also represents a legitimate instance of judicial lawmaking. Much administrative common law has a statutory and constitutional basis, and the factors that justify federal common law in other instances – unique federal interests at stake, a need for uniformity, and the impropriety of relying on state law – dominate federal administrative contexts. Finally, openly acknowledging the role that judicial lawmaking plays is critical to clarifying and improving administrative law.

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