Research Handbooks in Comparative Law series
Edited by Susan Rose-Ackerman and Peter L. Lindseth
M. Elizabeth Magill and Daniel R. Ortiz Little in the last thirty years has so changed thinking about American administrative law as Positive Political Theory (PPT). Before PPT emerged, American administrative law scholarship largely focused on how doctrine fit together, how we should reform it to promote particular normative aims, how it expressed the commitments of larger political theory, and how it furthered or frustrated effective administration. At its apotheosis in Richard Stewart’s ‘The Reformation of American Law’ (1975), it did all these things – and more – in aid of tracing American administrative law’s development. Soon, however, political scientists encroached on the field. They brought a set of tools to the study of administration that they had designed to analyze how political institutions function. The PPTers, in particular, ‘focused on how political institutions and the career objectives of elected officials shape political decisions’ (McNollgast 1999: 182). They sought to explain, among other things, why Congress imposed particular procedures on agency decisionmaking, how formalizing decisionmaking empowered various groups, and how agencies and courts could play their own interests off against the interests of the political masters they were supposed to serve. Their insights complicated ‘faithful agent’ models of administration and highlighted how agencies and courts could and, to some degree, did follow their own interests. Their arguments swept broadly and offered provocative, often cynical, interpretations of administrative rulemaking, judicial review, and effective separation of powers. PPT not only challenged much conventional thinking but also cast some long-accepted features of American administrative law...
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