This book, by two of the world's leading administrative law scholars, reimagines administrative law as the law of public administration by making its competence the focus of administrative law. Grounded in extensive interdisciplinary, historical, and doctrinal analysis, Fisher and Shapiro show why understanding both the capacity and authority of expert public administration is crucial to ensure the legitimacy and accountability of the administrative state. To address the current precarious state of administrative law, they support a new study of the administrative process by an Attorney Generals Committee on Administrative Procedure leading to a revised Administrative Procedure Act (APA). This book is a must-read for anyone interested in administrative law and its reform.
The role of generalist courts in reviewing the work of expert agencies is generally portrayed as either an institutional necessity on the one hand or a Pandora’s Box on the other. Courts are expected to ensure the accountability of agency actions through their legal oversight role, yet on matters of science policy they do not have the expertise of the agencies nor can they allow themselves to become amateur policymakers in the course of their review. Given these challenges, we set out to better understand what courts are doing in their review of agency science. We conducted a qualitative examination of the courts’ review of challenges to agency scientific choices in the entire set of the Environmental Protection Agency’s (EPA’s) National Ambient Air Quality Standards (NAAQS). Our study revealed an increasingly rigorous and substantive engagement in the courts’ review of scientific challenges to the EPA’s NAAQS over time that tracked the Agency’s own progress in developing rigorous analytical approaches. Our findings, albeit preliminary, suggest the emergence of a constructive partnership between the courts and agencies in science policy in NAAQS cases. In overseeing scientific challenges, the courts appear to serve as a necessary irritant, encouraging the agency to develop much stronger administrative governance and deliberative decisions on complex science-policy issues. Conversely, in developing stronger decisionmaking processes, the resulting agency efforts have a reciprocal, positive impact on the courts’ own standards for review. The courts and agencies thus appear to work symbiotically through their mutual efforts on the establishment of rigorous analytical yardsticks to guide the decision process. While our findings may be limited to the NAAQS, which likely present a best case in administrative process, the findings may still offer a grounded, normative model for imagining a constructive and even vital role for generalist courts in technically complex areas of social decision making. ; The Kay Bailey Hutchison Center for Energy, Law, and Business
Environmental models are playing an increasingly important role in most jurisdictions and giving rise to disputes. Despite this fact, lawyers and policy-makers have overlooked models and not engaged critically with them. This is a problematic state of affairs. Modeling is a semi-autonomous, interdisciplinary activity concerned with developing representations of systems and is used to evaluate regulatory behavior to ensure it is legitimate. Models are thus relevant to lawyers and policy makers but need to be engaged with critically due to technical, institutional, interdisciplinary and evaluative complexities in their operation. Lawyers and policy-makers must thus think more carefully about models and in doing so reflect on the nature of their own disciplines and fields. ; The Kay Bailey Hutchison Center for Energy, Law, and Business
Computational models are fundamental to environmental regulation, yet their capabilities tend to be misunderstood by policymakers. Rather than rely on models to illuminate dynamic and uncertain relationships in natural settings, policymakers too often use models as “answer machines.” This fundamental misperception that models can generate decisive facts leads to a perverse negative feedback loop that begins with policymaking itself and radiates into the science of modeling and into regulatory deliberations where participants can exploit the misunderstanding in strategic ways. This paper documents the pervasive misperception of models as truth machines in U.S. regulation and the multi-layered problems that result from this misunderstanding. The paper concludes with a series of proposals for making better use of models in environmental policy analysis. ; The Kay Bailey Hutchison Center for Energy, Law, and Business