What does today's Administrative Law course give your students that you might not be aware of and might be helped by knowing? That, as I understand it, is the question I am to answer. But we may also want to think about the overall shape of the curriculum: it may be useful to ask about fundamental issues our students may not be aware of, that may not be dealt with elsewhere in the law school curriculum. I'll spend most of my time on the question I've been asked to address, but I hope you will accept a few sentences on this second question. For administrative lawyers, that probable gap remains the one Harold Lasswell and Myres MacDougal suggested long ago, that contemporary law studies should include explicit instruction in the skills of public policy analysis – in particular, how to evaluate the need for and probable effectiveness of regulation.
Administrative Law is the hidden comparative law course of the public law and adjectival law curriculum. In my judgment, that is its main contribution to your students' appreciation for your own subjects. Its students come to grips again and again with problems whose contrasts with those of the standard court-centered curriculum can illuminate their other courses. The common thread here is in the rather pragmatic adjustments legislatures and courts have made to the exigencies of the administrative state, in the face of legal theories developed in the simpler theoretical world of one-function institutions and individual rights. Ideology and theory have rarely prevailed in competition with function and necessity. Although the situation may be changing, as we shall have to discuss, Administrative Law repeatedly confronts its students with doctrinal differences driven by "the necessity of the case," which can illuminate standard courses as well as our own. I'm going to give a few examples, proceeding in alphabetical order through the curriculum and stressing those developments that are more recent in origin.
Peter L. Strauss,
Administrative Law: The Hidden Comparative Law Course,
J. Legal Educ.
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