Democratizing Administrative Law – LPE Project

To Democratize Environmental Law, Let Ordinary People Decide

Kate Redburn — Thu, 26 Sep 2019 10:00:33 +0000

Environmental law has never felt so undemocratic. On nearly every aspect of environmental protection, the federal government is disconnected from the desires of its citizens. The best most citizens can hope for is that a still-distant election will produce a friendlier administration, one that will manage to embrace our priorities despite the immense influence of industry. There’s an irony beneath that sense of powerlessness, one that reveals a tragic flaw in modern environmental law. I want to both explore that flaw and introduce a tool from environmental law’s past that might help fix it. It’s a tool that entrusts ordinary people to decide: the jury.

The Democratic Political Economy of Administrative Law

Kate Redburn — Wed, 25 Sep 2019 10:00:20 +0000

This post is part of our symposium on democratizing administrative law. You can find all the posts in the series here. The modern administrative state has always faced ongoing debates about the appropriate balance between administrative authority and procedural constraint. But we are in a new moment of political peril in this debate. A newfound skepticism of administrative power has shaped recent...

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Policymaking as power-building

Kate Redburn — Tue, 24 Sep 2019 10:00:56 +0000

Many of the critical day-to-day governance decisions — from zoning to civil rights enforcement to worker protections, financial regulations, and consumer rights — take place within the administrative state. Without a greater degree of democratic responsiveness and accountability within the administrative process, these substantive rights are unlikely to be vindicated or equitably enforced. This means that policymakers and administrative law scholars alike need to start approaching the task of administrative institutional design with a greater attention to power disparities.

Reclaiming Notice and Comment: Part II

Kate Redburn — Fri, 02 Aug 2019 11:00:59 +0000

Here we discuss a type of organizing that has followed in the wake of mass commenting efforts, focused on analyzing the content of comments and ensuring their due consideration. Our central example comes from the Department of Education’s recent notice of a proposed rulemaking (NPRM) regarding the meaning of Title IX for complaints of sexual harassment (an umbrella legal term that includes sexual violence). Perhaps unsurprisingly, given the activism around the ED’s interpretation of Title IX in the Obama years, the agency recorded over 124,000 comments—and spurred the creative cataloging initiative we spotlight here. By analyzing comments themselves, participants in this initiative seek to support public engagement with administrative law and vindicate the democratic values at the heart of notice-and-comment mandates.

Critics of the Administrative State Have a History Problem

Kate Redburn — Thu, 01 Aug 2019 11:00:37 +0000

For the first time in nearly a century, the conservative scholars, judges, lawyers, and advocacy groups challenging the constitutional foundations of the modern administrative state have reached a critical mass. However, by relying on originalist foundations, these critics may be inviting in a Trojan Horse. As I argue in a forthcoming article, returning to 19th century administrative law would smuggle in an unwelcome consequence: largely eliminating judicial review of the constitutionality of agency action. As a result, they may have to choose between their originalist attack on the modern administrative state and preserving a type of court review they value highly.

Reclaiming Notice and Comment

Kate Redburn — Wed, 31 Jul 2019 10:30:49 +0000

This post is part of our symposium on democratizing administrative law. You can find all the posts in the series here. In June 2016, five months before the election of President Donald Trump, Senator Elizabeth Warren wrote a post for the Regulatory Review on “corporate capture of the regulatory process.” It highlighted myriad opportunities in the rulemaking process “for powerful industry groups to...

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Democratizing Administrative Governance: How the Civil Rights Movement Shaped Medicare’s Implementation

Kate Redburn — Tue, 30 Jul 2019 10:00:00 +0000

This post is part of our symposium on democratizing administrative law. You can find all the posts in the series here. In January 1966, the Johnson administration faced a regulatory battle between a risk-averse federal executive branch and the demands of a grassroots social movement. Starting on July 1, 1966, federal Medicare funds would begin to account for more than 25% of the revenue of the...

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