Preview: Procedures as Politics in Administrative Law

In Procedures as Politics in Administrative Law, I aim to connect the insights of legal scholars and positive political theory (PPT) scholars about the purpose of administrative procedures. For some time now, legal scholars and PPT scholars have maintained parallel but largely independent discussions of this subject. According to legal scholars, administrative procedures serve due process or rule-of-law values and often run at odds with political values, including accountability and efficiency. Because administrative law has vacillated over time between procedures and politics, it seems to contain significant tensions. For example, agencies must confront the prospect of judicial scrutiny but are due judicial deference for their decisions. Agencies must choose procedures that command the force of law, but have a choice among procedures. Agencies must answer for their failures to enforce the law but may choose whether to enforce the law. Within this framework, legal scholars have divided themselves into two camps: those who favor procedure, and those who favor politics.