At a recent conference, a new judge from one of the federal courts of appeal – for the United States, the front line in judicial control of administrative action-made a plea to the lawyers in attendance. Please, he urged, in briefing and arguing cases reviewing agency actions, help us judges to understand their broader contexts. So often, he complained, the briefs and arguments are limited to the particular small issues of the case. We get 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.
This Paper hopes to open a conversation about what strikes me as the largest and most underappreciated 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 in particular concrete instances. I wonder if this is also true in the legal orders of Europe.
Peter L. Strauss,
On Capturing the Possible Significance of Institutional Design and Ethos,
Admin. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/421