Document Type
Article
Publication Date
1-2013
Journal Title
Journal of Law and Politics
ISSN
0749-2227
Abstract
The idea of political control dominates our understanding of both what administrative law does and what it should do. This emphasis on political control, however, downplays the important ways that administrative law facilitates resistance to political control in administrative agencies. In this article, I offer studies of two instances in which agencies harnessed the power of seemingly standard administrative law litigation to resist the imposition of policies by political leadership. I classify these kinds of modes of resistance as instances of “litigation-fostered bureaucratic autonomy” and flesh out the mechanisms that drive the process. Acknowledging the role of such modes of resistance is critical to administrative law scholarship insofar as it casts some doubt on the empirical underpinnings of a principal-agent understanding of the function of administrative law. It also poses a potential challenge to the democratic justification of the administrative state, though I ultimately conclude that modes of resistance such as that demonstrated by litigation-fostered bureaucratic autonomy can help curb the excesses of political principals and encourage public-interest-minded deliberation about issues that are both highly technical and value laden.
First Page
129
Last Page
184
Num Pages
56
Volume Number
28
Issue Number
2
Publisher
University of Virginia School of Law
Recommended Citation
Daniel E. Walters,
Litigation-Fostered Bureaucratic Autonomy: Administrative Law Against Political Control,
28
J.L. & Pol.
129
(2013).
Available at:
https://scholarship.law.tamu.edu/facscholar/1576