In their broadest strokes, my scholarly interests revolve around questions of regulatory design – inquiries into the institutional forms that law and regulation variously take, and should take. Dynamics of coordination have been particularly salient for me, underpinning a potential role for non-coercive mechanisms of state action I term “regulatory cues,” as well as cross-jurisdictional regulatory interactions I term “intersystemic governance.”
In exploring these patterns, my work has often intersected with issues traditionally studied in the fields of constitutional and administrative law. Questions of U.S. federalism, the nature of federal jurisdiction, and judicial review have variously reared their heads; the nature of the modern administrative state, meanwhile, is front and center.
My various analyses of regulatory cues, intersystemic governance, and the like have also seemed to diverge from the constitutional and administrative law literatures, however, in a way that has always struck me as significant, but was only recently driven home, in relevant comments and work of others.
My earliest sense of the relevant divergence came some years back, when I was working on my very first article, and read the opening paragraphs of Jody Freeman‘s The Private Role in Public Governance, 75 N.Y.U. L. Rev. 543, 545-46 (2000). She states (with citations omitted):
Administrative law, a field motivated by the need to legitimize the exercise of governmental authority, must now reckon with private power, or risk irrelevance as a discipline. Since the New Deal explosion of government agencies, administrative law has been defined by the crisis of legitimacy and the problem of agency discretion. Agencies can claim, after all, only a dubious constitutional lineage–the Framers made no explicit provision for them, but instead divided power among the legislative and judicial branches and a unitary executive. The combination of executive, legislative, and adjudicative functions in administrative agencies appears to violate the separation of powers principles embodied in the Constitution. Worse yet, despite their considerable discretionary power to impact individual liberty and property rights, allocate benefits and burdens, and shape virtually every sector of the economy, agencies are not directly accountable to the electorate.
Unsurprisingly, administrative law scholarship has organized itself largely around the need to defend the administrative state against accusations of illegitimacy, principally by emphasizing mechanisms that render agencies indirectly accountable to the electorate, such as legislative and executive oversight and judicial review. Scholars have expended considerable energy in particular on structuring and disciplining the exercise of discretion in order to limit agencies’ freedom “to do as they please.” Only a handful of articles in the last sixty years, by contrast, have ventured beyond the traditional preoccupation with agencies and the project of constraint.
Freeman goes on to grapple with the question of the private role in public governance, the insight for which she is perhaps most famous. Beyond this discrete (if quite significant) point, though, I read the latter paragraphs to suggest an even deeper truth. As we have defined the discipline of administrative law (and constitutional law, I would venture to add), its underlying project – its basic motivation – is the constraint of government power (and perhaps executive power, most of all). It is, as Freeman’s opening paragraphs emphasize, an analysis in the negative, of how we limit the scope of state action.