The core doctrines of administrative law have not taken account of developments in the theory and practice of organization. The contours of these doctrines were set in the mid-twentieth century when the Administrative Procedure Act (APA) was passed. Although these doctrines have evolved since then, administration itself has changed more. Many of the widely perceived deficiencies of the doctrines, including some associated with overregulation and others with underregulation, seem influenced by an anachronistic understanding of organization.
Much administrative law continues to understand public administration as bureaucracy. In particular, doctrine is strongly influenced by three premises. First, the backward-looking conception of legitimacy sees organization as instrumental to previously chosen values and goals. Authority thus depends on prior authorization. Second, there is the balance between fixed rules and unreviewable discretion. In the bureaucratic view, the rule is the most important type of norm. However, because rules are relatively inflexible and difficult to change, residual pockets of unaccountable discretion must be tolerated. And, third, is the reactive approach to error detection. Errors are understood to arise from idiosyncratic circumstances; they are addressed primarily through complaints, and complaints are understood to raise primarily issues of individual accuracy or fairness.
The model of organization these premises express is associated in the private sector with mass manufacturing of standardized products as it developed in the early and mid-twentieth centuries. The ideas developed in manufacturing influenced public administration, especially the Progressive and New Deal regulatory and social welfare programs. The designers of the APA were responding to these programs. This model was once the dominant paradigm of efficient large-scale organization, but it now competes with, and in some quarters has been displaced by, another one. This newer, postbureaucratic or performance-based approach has emerged in the private sector as industries have sought flexibility to adapt to more volatile economic circumstances and to the demand for more differentiated products. As reformers have recognized an analogous need for government to respond to fluidity and diversity, they have imported elements of the postbureaucratic view to the public sector.
Administrative Law | Law
William H. Simon,
The Organizational Premises of Administrative Law,
Law & Contemp. Probs.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/856