The Organizational Premises of Administrative Law

William H. Simon, Columbia Law School


Administrative law is out of touch with forms of public administration developed since the Progressive and New Deal eras. It is strongly influenced by bureaucratic conceptions of administration that see (1) legitimacy in terms of prior authorization; (2) organization as a balance of stable rules and unaccountable discretion, and (3) error detection as a reactive, complaint-driven process. Yet, many public programs developed since the 1970s strive to establish post-bureaucratic or performance-based forms of administration that view (1) legitimacy in terms of exposure to public oversight; (2) administration as a matter of comprehensive but flexible planning, and (3) error detection as proactive. I illustrate the dominance of the latter style of organization in major contemporary regulatory and social welfare regimes. I also show that, while the administrative law of the casebooks and treatises ineffectively addresses key issues of accountability presented by the newer regimes, a parallel law of public administration has emerged in recurring provisions of modern regulatory and welfare statutes, in executive-branch initiatives, and in the activities of courts in institutional reform cases. This “noncanonical” administrative law is more attuned to performance-based organization. Canonical doctrine could improve by accommodating this alternative conception of organization.?