Going back to the birth of modern administrative law in America reveals something striking. The pioneers of the field and many who followed in their footsteps weren’t trying to fashion a body of law for a rapidly expanding administrative state by being exclusively self-referential—that is, by focusing only on our own idiosyncratic experiences and needs in the United States. Rather, they were consistently looking at what we might learn from other nations as well. In short, modern administrative law began in America very much as an exercise in comparative or transnational law. Fast forward to today, and this intense comparative engagement has almost vanished from the administrative law scene. It lives, but only on the very margins of the scholarly and policy debate without any real purchase or impact. What’s more, even when administrative law comparison does suddenly appear in quite prominent places, its employment seems so problematic that it actually gives the entire enterprise a bad rap. For instance, in his dissent from a denial of cert. in Buffington v. McDonough from the October 2022 Term, Justice Gorsuch chastised his colleagues for refusing to reevaluate Chevron deference among other things by noting simply that other countries “declined to adopt” something similar. To be sure, Justice Gorsuch’s comparative statement seems superficially true. But it suffers from many of the familiar failures of irresponsible comparative inference—including by being shallow, acontextual, and selective. In fact, Justice Gorsuch’s comparativism in Buffington may not only be flawed but also what comparativists might call “abusive”—that is, it was done in the service of gradually undermining what our constitutionally legitimate administrative state presently seems to require.
This Article calls for reviving comparative administrative law as a much more meaningful enterprise in our system, arguing that its many benefits should cause domestic scholars to engage in it more and judges, litigators, and policymakers to not be reluctant to use it as well. In the process, this Article also suggests how precisely to approach comparative administrative law in useful and productive—rather than shallow and abusive—ways that would avoid the kind of pitfalls characteristic of Justice Gorsuch’s opinion in Buffington. With the Court any day now poised to conclusively opine on the continued validity of Chevron deference in two cases that came to it after Buffington, Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, and given the larger pressures our administrative state faces, considering the values of administrative law comparison and how to employ it properly seems exactly opportune.
Part I tracks the rise and fall of comparative administrative law in the U.S. through the years and suggests the causes for its demise. Part II makes the affirmative case for comparative administrative law’s revival, emphasizing the increased possibilities for such comparison today, its ability to enhance understanding of our own administrative law and to point in the direction of desirable reforms, and identifying what this Article calls a “modest and experimentalist” approach that should enable amplifying comparativism’s place while avoiding risks of misuse and abuse. Part III then illustrates this approach by discussing two doctrinal areas where our administrative law could indeed learn valuable lessons by looking outside: first, the law governing administrative guidance, and, second, Chevron, illustrating how an adequate comparative approach rectifies Buffington’s failures and might usefully illuminate the Court’s analysis in either Loper Bright and Relentless or well beyond. The Article concludes by highlighting strategies to support the desired comparative administrative law rebirth, pointing to changes in the law school curriculum and in some scholarly, judicial, and bar practices.
INTRODUCTION
In the field of administrative law, we love our history. We frequently turn to history, for example, to try and figure out the origins of our administrative state, debating whether it is a relatively recent creation or rather a much older one. We turn to history too to make better sense of the passage of the Administrative Procedure Act of 1946 (“APA”)—discerning the various forces that were pushing for it (or against it), and what ideas or compromises exactly stood behind its various provisions and instructions. And we finally turn to history to understand what role different institutions or players were believed to have (or should have) over the administrative apparatus more broadly—whether those are the courts, the President, Congress, or much beyond. For some, this continuous turn to administrative law history is done as a source of intellectual learning and reflection about our past, sometimes in order to better grasp why our law is what it is today or what opportunities we might have to change it. For others, embracing labels such as administrative law “originalism” or APA “textualism,” this incessant turn to history can take a much more authoritative tone—insisting that the lessons of the past might still govern us today.
But there is something in all this love that we’ve been giving to our administrative law history that we seem to be forgetting today. Our contemporary talk about our administrative past is usually pitched in strongly self-referential terms—as though modern administrative law was born out of exclusive reflection on our own idiosyncratic challenges in developing a body of law for a rapidly growing administrative state. As though it was only about “we,” “us,” and “our” needs. That, however, wasn’t the case at all. Modern administrative law didn’t begin in our system through geographically bounded reflection and thought. To the contrary, we were consistently looking at other nations and their own respective administrative states and laws to see what we might learn from them. In short, administrative law was born in America very much as an exercise in comparative or transnational law.
This is not an exaggeration. In fact, the work of scholarship that was the first to coin and popularize the term “administrative law” in the U.S. was explicitly comparative in nature. That work was Frank Goodnow’s book, suitably titled Comparative Administrative Law and published in its first edition in 1893. And, as its subtitle says, the book was indeed a deep comparative study of administrative systems and laws, both national and local, of the United States, the United Kingdom, France, and Germany. Goodnow also spent time in this book defending his unabashedly comparative administrative law methodology. He said for example that a “foreign point of view” is necessary because “in the present stage of the study [of the field of administrative law] it is to foreign writers that we must look for all scientific presentations of the subject.” More broadly, Goodnow argued that “only by study, and by comparison of our own with foreign administrative methods” can we meet the “enormous demands” imposed on our government by “modern complex social conditions.”
Goodnow’s 1893 book was undoubtedly important and influential. But it was by far not alone. Many other prominent administrative law scholars working from Goodnow’s time and until roughly the end of the 1960s and beginning of the 1970s were also very much in the business of studying what Goodnow called the “foreign point of view” in administrative law with impressive levels of intensity—including Ernst Freund, Roscoe Pound, Felix Frankfurter, James Landis, and later Louis Jaffe, Kenneth Culp Davis, and Walter Gellhorn. The most prominent American law journals were also emphatically part of this transnational administrative law enterprise. These journals were consistently publishing at the time comparative administrative law scholarship, sometimes written by domestic public law academics but sometimes by foreign scholars who were specifically invited to contribute to their pages. Even judges and litigators in the U.S. occasionally demonstrated interest in administrative law developments across our borders and how they might teach us about our own law. Comparative administrative law was also a key pedagogical tool used in the American law school classroom. Indeed, most shockingly perhaps, our students used to know in the past quite a bit about how administrative law is practiced abroad.
It is not at all surprising then that one prominent contemporary American scholar has observed, in a rare moment of recognition of comparativism’s past dominance in the broader landscape of U.S. administrative law, that the pioneers of the field would rely on foreign and domestic sources in unison without even noting their different national origins. As one other commentator at the time put it, proving the necessity of comparative administrative law at the time was a no-brainer—as if you were to ask someone to prove the necessity of eating something for breakfast.
Fast forward to today, and this obvious and intense preoccupation with administrative law comparison has clearly waned. American scholars and judges working in the administrative law space rarely ever express interest today in what’s going on beyond U.S. borders. Unlike their predecessors, and even more than their colleagues in the field of constitutional law who have been flirting much more eagerly with the laws of other nations, administrative law scholars, judges, and practitioners are increasingly parochial and self-referential. They don’t even debate or fight about the merits of the comparison. It’s as if the possibility of engaging comparative administrative law is entirely invisible to them.
If you don’t believe me, try. Ask your favorite American administrative law scholar what other systems are doing in the doctrinal domain which they presently study or write about, and they will rarely know. Take from the bookshelf one of your favorite recent administrative law scholarly works (or, more realistically perhaps, search the internet on your go-to electronic database), and you will almost never find discussion of relevant foreign practice or law. Flagship law reviews also rarely publish today work that centers comparative administrative law. And foreign administrative law and practice basically never makes an appearance in judicial practice, either—whether being referenced in a judgment or cited in a brief. The work of other influential bodies in the administrative law space in America, such as the Administrative Conference of the United States, likewise rarely tries to look across geographical spaces. Comparative administrative law today also basically never makes an appearance in the administrative law classroom.
And if you think that other countries don’t notice, try again. Indeed, our substantial “uninterest[]” in what others have to offer in administrative law is frequently remarked upon. As a result, the fact that a recent compilation of essays on “Judicial Review of Administrative Action Across the Common Law World” doesn’t include serious discussion of U.S. administrative law probably should be seen as a form of tit for tat.
As one might expect, there are exceptions to this contemporary administrative law parochialism in America. Occasionally, scholars in the field (or in public law more broadly) do dabble in some comparative administrative law engagement. And there are some serious and well-known contemporary U.S. scholars who have taken systematic interest in comparative administrative law—most prominently, Susan Rose-Ackerman, Peter Lindseth, Francesca Bignami, Michael Asimow, and, before his passing, Bernard Schwartz.
It is hard to escape the conclusion, though, that this sort of work is quite limited in nature. For one thing, it is marginalized in the debate, not really being cited, or studied, by domestic U.S. scholars, courts, or other practitioners (partly because some of it isn’t focused on what is still, for better or worse, the heartland of our field—the issue of judicial review of administrative action—and partly because it is usually published in outlets that unfortunately don’t attract a lot of domestic American administrative law readership, like edited essay collections or specialty international and foreign law reviews). For another thing, some of the comparative administrative law work that does exist today in the U.S., while certainly illuminating and sophisticated, is somewhat one-sided and monological. It is about what others can learn from us, not what we might learn from others.
In addition, despite the general neglect, we do occasionally see some form of administrative law comparison in quite prominent places. Consider in this context Justice Gorsuch’s dramatic dissent from denial of cert. in Buffington v. McDonough from the October 2022 Term. Buffington raised the question of whether the famous Chevron decision—well-known for granting deference to administrative agencies’ reasonable interpretations of statutes—should be overruled. In chastising his colleagues for not taking up that question in Buffington (we’ll see in a moment there’s been an important development on that front), Justice Gorsuch casually highlighted the fact that courts in other countries have “declined to adopt the [Chevron] doctrine” as another reason for why the Court was too quick to shut its ears. That was undoubtedly a moment of important recognition of the possibility of comparative administrative law in the U.S. reports. But Justice Gorsuch’s casual comparativism in Buffington, though superficially true, was the kind of thing that serious comparativists would quickly reject. With vigor. It suffers from exactly the kinds of failures that comparative law scholars have consistently emphasized would be the hazards of their craft—including by being acontextual and selective. In fact, Justice Gorsuch’s shallow comparativism may not be merely irresponsible; it might also be what some comparativists would call “abusive”—that is, it was done in the service of gradually undermining what our constitutionally legitimate administrative state seems at present to require.
This Article argues that all this needs to urgently change. We need to stop being so parochial and self-obsessed only with our own administrative law. We need to revive our interest in and engagement with comparative administrative law. This means that domestic administrative law scholars should demonstrate more interest and reflect more frequently about foreign practice and law in the areas that they study and write about. And this means too that judges, litigators, and policymakers in the U.S. should not be so reluctant to use comparative administrative law and draw on it as well. To be clear—my claim is decidedly not that comparative administrative law should become methodologically hegemonic or that we should massively start to engage it at the expense of all other things. There are good reasons to focus primarily on domestic developments and perspectives and draw on diverse methodologies. Sensible comparativists accept, even if grudgingly, that they are destined in some important sense to be marginalized. At the same time, the present neglect is extremely out of whack with the substantial benefits of comparative administrative law. Some meaningful amplification of the place of comparative administrative law in our system is quite clearly justified.
The present moment seems opportune for the domestic administrative law world to extend an invitation once again to comparativists to come and play a bit more outside their usually secluded purviews, and to go more comparative itself. This is so for three primary reasons. First, after years in which the field of administrative law has been perceived as one whose particularities erect substantial barriers from performing responsible cross-national comparison that generates real insights, things are now beginning to change. More and more scholarship that compares national administrative states and laws is now appearing—updating the work of previous generations as well as complicating it. The overall impression from this scholarship is that in light of processes of globalization and, as we will soon see, the fading away of some important divergences between national administrative systems, the “possibilities” of comparative administrative law are now finally evident and growing, like they have been for a while now in the adjacent field of comparative constitutional law. It is time for the domestic administrative law community in the U.S. to realize that changed global reality and start tapping into it as well.
A second reason for why we need to go more comparative now is that it is hard to dispute that our own administrative law is under severe pressure today, especially from our Supreme Court. As is well known and widely discussed, the Court has recently introduced many dramatic changes into administrative law, substantially breaking away from—if not directly attacking—the “equilibrium” that existed before. But because a key virtue of comparative administrative law is exactly that it helps produce a better understanding of our own domestic predicament in the United States, comparison could be an important resource for facing the contemporary malaise. With comparative law’s aid we might, for example, see more clearly which components of our administrative law really emerge from our own unique situation in the U.S., and therefore why attacking these components of present-day law could be especially misguided and abusive. Alternatively, looking at the way other systems balance the conflicting goals underlying administrative law might assist us in recognizing paths for administrative law reform that we did not think of before, or that we were so far too hesitant to embrace. Such reforms might even respond to genuine failures that exist in our own contemporary administrative law. Accordingly, they might help take some of the edge from the present attack, and even build in the direction of an attractive resolution.
A final reason for why the exploration of the values of comparative administrative law is timely is that the Court itself may be dramatically heading for a second round of comparative administrative law. Though in Buffington, the Court refused to grant cert. on the question of Chevron’s continued validity, the Court appears to have had a change of heart. Indeed, in two different cases that came to the Court later, Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, the Court did end up taking up that exact same question. And the world of administrative law stands still with anticipation.
Of course, the Court’s analysis in Loper Bright and Relentless—expected any day now (!)—will focus mostly on domestic perspectives, as it emphatically should. But given Justice Gorsuch’s dissent in Buffington, it is not unlikely that the Court might itself be interested in looking abroad again. If so, the current moment is an important opportunity first and foremost to correct the record on Buffington’s failures of shallow, selective, and even abusive comparison. To show, in other words, what a responsible comparative exercise can in fact teach us about Chevron’s continued validity and how it might illuminate the Court’s forthcoming analysis in Loper Bright and Relentless (or, if not in these cases, then beyond them). Additionally, this dramatic moment of a possible second round at the Court provides an opportunity to try to develop a more constructive approach to administrative law comparison in general. This kind of general approach to comparative administrative law could not only systematically avoid Buffington’s failures in the future but would also clear the path (and even actively support) the desired revival of comparative administrative law.
The remainder of this Article proceeds in four parts. Part I begins by sketching the rise and fall of comparative administrative law in the U.S. through the years and explores the reasons for its contemporary demise. Part II then slowly builds the affirmative case for the comparative administrative law revival. It emphasizes the increased possibilities of such comparison today relative to the past; it highlights comparativism’s substantial benefits in enhancing understanding of domestic administrative law systems and in providing a source of inspiration for useful reforms (particularly in times of administrative and democratic distress); and, finally, it identifies what I will call a “modest and experimentalist” approach to administrative law comparison that should enable amplifying comparativism’s place while minimizing risks of “misuse” and abuse. To illustrate the approach this Article defends, Part III follows by zooming in on two doctrinal domains within our administrative law that seem ripe for comparative engagement, both in general and especially given the current pressures on the American administrative state.
The first domain Part III zooms in on is that of the law governing the use of guidance—that is, those documents that agencies regularly issue that lack the force of law and are thus exempt from notice-and-comment proceedings. As it currently stands, our law has landed on a particular path for “domesticating” the risks of abusing administrative guidance, namely by empowering courts to invalidate guidance that is “practically binding” and requiring that it goes through notice-and-comment. As we will later see, though, other jurisdictions, including primarily the United Kingdom, but also France, Italy, Canada, and the European Union, adopt a quite different approach to guidance domestication. That approach mostly denies courts the power to police the line between guidance that lacks the force of law and rules that do, for example because the guidance “practically binds.” Instead, this comparative approach focuses courts on a contextual review, on a pre-enforcement basis, of both the legality and arbitrariness of sufficiently important guidance documents. I will suggest that a modest and experimentalist approach to administrative law comparison provokes the possibility of moving our law in a direction closer to what we see abroad.
The second domain Part III zooms in on is, of course, Chevron deference. As Justice Gorsuch was right to say in Buffington, it is hard to see Chevron or something exactly like it abroad. But contrary to what Justice Gorsuch suggested in Buffington, that comparison doesn’t support overruling Chevron or dramatically cutting it back. A modest and experimentalist comparative administrative law approach that looks to countries as diverse as the United Kingdom, Germany, France, Israel, Australia, and Canada (among others) makes that conclusion at present extremely hazardous, even untenable and indeed abusive. As Part III argues, there are too many crucial cross-national differences that Justice Gorsuch’s opinion has ignored, differences which help to both explain and justify why other systems lack Chevron and why we have had it thus far.
Having said that, Part III also suggests that the kind of modest and experimentalist comparative administrative law approach this Article defends can certainly provoke us toward imagining a future where seriously considering letting go of Chevron and displacing it with something else that exists abroad (specifically, the deference regime that was recently consolidated in our neighbor jurisdiction, Canada) would indeed be desirable. As will be clear soon enough, the legal and political conditions that would make this Chevron-free future workable contrast starkly with the notions underlying the present judicial attack, including by the Supreme Court, on Chevron and on our administrative state more broadly. They would require quite a bit of transformation in American constitutional politics and legal culture. As a result, this potentially desirable, Chevron-less future is likely not realizable in the immediate term. That doesn’t mean, however, that we shouldn’t start working toward bringing that future closer. Comparative law itself suggests we can and should, so long as we do so modestly and experimentally, as I suggest here, rather than shallowly and abusively, as Justice Gorsuch’s opinion in Buffington has attempted.
Part IV concludes the Article by pointing toward several institutional strategies that could help bring forth the desired rebirth of comparative administrative law. These strategies look to the law school curriculum and to some important scholarly, judicial, governmental, and bar practices. The aim is to show that change is within our grasp if we would only choose to pursue it.
I. THE RISE AND FALL OF COMPARATIVE ADMINISTRATIVE LAW
This Part sketches the story of the rise and fall of comparative administrative law in America through the years. My purpose here is first and foremost to show just how much it used to be prevalent in the past and how much it is neglected and marginalized today. In addition, this Part’s goal is also to speculate about what may have been the primary causes of the demise of comparative administrative law. After all, any attempt at its revival will have to confront these reasons to see if they still hold today.
Section I.A begins with the rise. Section I.B continues to the fall. Section I.C concludes with explanations.
A. At the Start: An Era of Persistent Comparison
We have largely forgotten this, but the truth is that modern administrative law began in our system very much as a “self-conscious exercise” in comparative law. Frank Goodnow’s 1893 book Comparative Administrative Law, mentioned before and which was the first to even coin the term “administrative law” in America, is Exhibit A. The title (and subtitle) of the book basically shouts it, but its content also doesn’t fail to deliver on the comparative promise. Indeed, the book contains an exhaustive discussion of the different ways that France, Germany, the United Kingdom, and the United States organize their respective central and local administrations, the law applicable to official appointments in each country, and the various systems of control of administration—whether political or judicial.
But Goodnow, a Professor of Political Science at Columbia and later the President of Johns Hopkins University, persisted with administrative law comparisons much beyond this initial and influential book and throughout his illustrious career. In many ways, comparative law was his central scholarly methodology. For example, Goodnow’s extensive use of comparative law and practice was also evident in Politics and Administration (1900). In this pioneering book, still considered a staple in the field of public administration, Goodnow built extensively on practices in Germany, France, Italy, and the United Kingdom to suggest reforms to the organization of the growing administrative state in America. As he repeatedly emphasized throughout the book, despite the existence of apparent differences between these countries, they nonetheless share common goals, a fact that Goodnow believed opened the door for learning mutual cross-national administrative lessons. Goodnow continued to draw on comparison also in Social Reform and the Constitution, which resulted from a series of lectures he gave in 1911. Among other things, Goodnow compared in this book decisions of the U.S. Supreme Court that recognized the legality of broad delegations to agencies to those of courts in the U.K. and Germany. And he lauded the Court for “bringing our law into accord with that of foreign countries, where such ordinance powers have for a long time been regarded as a necessary adjunct of executive or administrative authority.” Even when Goodnow bracketed his overt comparativism, its influence was substantial. His book, The Principles of the Administrative Law of the United States, while making no explicit reference to comparative law, was organized entirely based on a similar book by a noted German administrative law scholar whose work was intimately familiar to Goodnow.
Another important figure at the birth of modern administrative law was Ernst Freund. Like Goodnow’s 1893 book, Freund’s 1894 essay, The Law of the Administration in America, is still considered key for the emergence of the field of modern administrative law. And just like Goodnow, Freund’s method of making sense of administrative law was centrally comparative. Indeed, Freund, who had been teaching at the University of Chicago Law School since 1904, published in 1911 what was the first American casebook in administrative law. The title of the casebook gave no illusions about its pedagogical methodology: it was Cases on Administrative Law Selected from Decisions of English and American Courts. But Freund’s most notable and extensive foray into comparative administrative law was probably in his 1928 book, Administrative Power Over Persons and Property: A Comparative Survey. This book described in painstaking detail (which also was in large part what made the book “virtually unreadable”) the different court systems in Germany and the U.K., the various theories that stood behind these countries’ laws on governmental liability as well as supervision of the legality of agency action, and the remedial powers of courts. And it encapsulated Freund’s central view that American administrative law was increasingly showing signs of resemblance to, surprisingly perhaps, German administrative law, mainly given what Freund argued was America’s adoption of the technique of legislative specificity and refinement as the primary method for constraining administrative discretion.
Goodnow and Freund are justly considered the “pioneer[s]” of the field of modern administrative law in America. But other scholars working roughly at the same time also followed in their footsteps in drawing consistently on comparative administrative law. Edmund Parker, a lecturer at Harvard University, wrote a noted piece at the time advocating a system of administrative courts in the U.S. based on France and using French law to strongly argue for reforms of the U.S. doctrine of sovereign immunity. James Garner, a political scientist at the University of Pennsylvania, published a series of articles, including in the Yale Law Journal and the N.Y.U. Law Review, on German and French administrative law. And in 1913, Stephen Foster wrote a piece in the Illinois Law Review with extensive reference to the practice of legislative delegation in the U.K. The openness of the slowly growing field of administrative law to comparative influence and transnational dialogue was furthermore evident in the fact that in 1914, Leon Duguit, one of France’s leading administrative law theorists, was invited to write a “glowing account” of the French administrative court system in one of the leading American political science journals.
Administrative law comparison continued well into the New Deal era. Sidney Jacoby, a fellow at Columbia University and later a Professor at Georgetown University wrote an influential article published in the Columbia Law Review in 1936 discussing, partly in response to the Supreme Court’s dramatic decisions in Panama Refining and Schechter Poultry, the practice of delegations to the executive in France, the U.K., Germany, Italy, and Switzerland (among others). In 1938, the University of Chicago Law Review also reprinted a lecture given by Karl Loewenstein, then a Professor and later the Head of Political Science at the University of Massachusetts at Amherst, extensively discussing delegation from a comparative perspective in large part to criticize the Court’s decisions in Panama Refining and Schechter Poultry. Stefan Riesenfeld, soon to be a Professor at the University of Minnesota and later at Berkeley, wrote a series of three articles in 1938, published in the Boston University Law Review, in which he discussed—like Garner and Duguit before him—the potential suitability of the French system of administrative law for the U.S. Fritz Morstein Marx, then Professor of Government at Harvard, similarly wrote a series of articles published mostly in the University of Pennsylvania Law Review titled Comparative Administrative Law on various themes in administrative law, referring mostly to France and Germany (though occasionally also to English and Italian administrative law) and suggesting points of useful borrowing. And in 1942, C. Sumner Lobingier, a former judge and SEC commissioner, and later a long time faculty member at George Washington University, published in the University of Pennsylvania Law Review a study on French administrative law and how it might prove “instructive” for the U.S.
But of course, a central figure in the rapidly emerging field of administrative law during the New Deal was undoubtedly Felix Frankfurter, then at Harvard and later an Associate Justice of the Supreme Court. Contrary to Goodnow, Freund, and many of the other scholars previously mentioned (like Garner, Riesenfeld, and Marx), Frankfurter adamantly rejected continental approaches to administrative law originating from France and Germany as suitable for the American system. However, his interest in administrative law of the “English-speaking” world—including “Great Britain, Canada, Australia, South Africa, [and] the Irish Free State” —was substantial and persistent. Frankfurter talked, for instance, in a famous article from 1927 about the existence of a shared “Anglo-American legal order” that, he argued, can appropriately guide administrative law at the time and into the future. Indeed, he spoke in praise—even reverence—of the English bureaucracy, which he described as “a highly trained and disinterested permanent service, charged with the task of administering the broad policies formulated by Parliament and of putting at the disposal of government that ascertainable body of knowledge on which the choice of policies must be based.” And in his own influential case book on administrative law, coauthored with James Davison, he moreover highlighted how “comparative study of [the English-speaking] systems of public law [could] yield[] very practical as well as cultural illumination.”
Frankfurter expressed his comparative administrative law interest in various ways that went well beyond his own primary scholarship. For example, Frankfurter authored an opening piece for a comparative administrative law symposium in the Iowa Law Review in 1933 that, as he described it, “focuses attention upon problems that will increasingly demand thought in action—how to make government effective and yet retain our noble prejudice in favor of liberty and our belief that reason may be domesticated.” That symposium opened with an article on French administrative law, an article on German administrative law, and, perhaps reflecting Frankfurter’s own aversion to continental approaches and his emphatic embrace of the “Anglo-American” tradition, two articles on administrative law in the U.K. In addition, when the noted British public law scholar W. Ivor Jennings gave a paper on administrative law in the U.K. at Harvard, which was later published in the Harvard Law Review, Frankfurter wrote a glowing opening essay. He acknowledged there that “when an important legal treatise is contained within the covers of an English Blue Book, it is not likely to secure vogue among American lawyers.” But Frankfurter insisted that “despite the great formal differences, many of the basic conceptions of the public law of England and of the United States are rooted in the same historic soil.” And he described Jennings’ survey of administrative law in the U.K. as “illuminating” and “of immediate concern to the student of American Administrative Law.” Finally, Frankfurter’s interest in comparison was also evident by the fact that at Harvard he was the doctoral supervisor of John Willis who wrote what was described as the “leading English response” to the critique of the administrative state across the pond.
Though Frankfurter was central to the establishment of administrative law, he was again not the only central figure interested in comparative administrative law during this time. James Landis’s book The Administrative Process is discussed and mentioned in debates about the administrative state to this very day. But what these discussions fail to mention is that the book is also chock-full of references to administrative law in the U.K. For instance, Landis referred in the book to “[o]ur British cousins” who, he said, were also dealing with similar questions of how to square the administrative state with their own respective constitutional framework. He cited pronouncements by an English judge on the growth of the administrative state, and he referred to the push in England for some specialization in the judiciary (particularly in the conduct of administrative adjudications). Most dramatically perhaps, Landis also argued for a potential borrowing of solutions from the U.K. to America in response to the legitimacy tensions that he believed broad delegation to administrative agencies create, noting that “English administrative law . . . [developed] techniques . . . which might be adapted to our needs.”
At the time, comparative administrative law lived mostly in the pages of scholarship and in the hallways of the academy. But it wasn’t entirely absent from legal practice as well. In fact, a famous decision by the U.K. House of Lords in a case called Local Government Board v. Arlidge proved influential to initial American practice of administrative agencies in conducting hearings. In Arlidge, the House of Lords ruled, in what was a major innovation at the time, that administrative agencies need not follow “judicialized” procedures when making adjudicative decisions. Agencies could rely, for example, on written testimonies and confidential information. And agency heads could delegate to their subordinates the power to conduct a hearing, review the materials, and issue initial recommendations. In other words, they need not “hear” themselves. Despite forceful criticism of the decision in America (including, most vocally perhaps, by Roscoe Pound), the idea of sub-delegation to subordinates to conduct hearings, which Arlidge blessed in the U.K., quickly penetrated here as well. As one case note from the time put it, “this same procedural method has been followed in many of our departments and upheld by the United States courts.” It was also relied on by the Attorney General while arguing Morgan v. United States (also known as Morgan I) in the Supreme Court. And while the Court in Morgan I explicitly distinguished Arlidge, suggesting that sub-delegation to subordinates to conduct hearings can occur only when the agency in question is a commission headed by multiple commissioners, the decision’s impact on American law continued. Arlidge was continuously discussed, mostly approvingly, both in scholarship as well as in the legislative process leading to what came to be the APA.
Since the passage of the APA in 1946, administrative law comparison “tailed off dramatically.” Still, it was far from entirely gone. It continued to live, for example, in occasional publications in journals (even if now less prestigious ones and more geared toward domestic specialists). And it was still meaningfully incorporated into the work of several prominent administrative law scholars though, admittedly, in a somewhat subtler form.
Louis Jaffe, obviously another key figure in modern administrative law whose name and work are still invoked to this very day, devoted “considerable energy to comparative research” even if he “tended to incorporate foreign law into his basic work, rather than reporting on foreign law, or writing self-consciously comparative exercises.” For example, a year after the APA entered into force, Jaffe wrote an article echoing themes raised by Landis about the possibility of exporting techniques from the U.K. to solve the tensions underlying expansive delegation to agencies (and which could help achieve, he said, more “active control” for Congress over the administrative state). Jaffe also returned to the same issue in his famous treatise, Judicial Control of Administrative Action, which incorporated much of his earlier work. But Jaffe’s discussion of comparative law in his treatise went well beyond that specific theme. Indeed, foreign sources and comparative discussion were sprinkled all over it. Among other things, Jaffe made references to the phenomenon of Henry VIII clauses in the U.K. (which are similar to what is known in the U.S. as “big waiver”). It also had a substantial chunk on the history of judicial review in the U.K. and America, a review of the law of “sovereign immunity” in the U.K., a discussion of how courts in the U.K. review the subjective motives of administrative decisionmakers, a comparison between the law of unreviewability in American administrative law and so-called “privitive clauses” in the U.K., and survey of the U.K. doctrine of “jurisdictional fact.” The book even contains some references to Canadian law about the scope of judicial review and a brief discussion of Italian, German, and French administrative law standing doctrines. And Jaffe pursued his keen interest in comparative law also in a later book, English and American Judges as Lawmakers, which, as its title suggests, compared styles of judicial decision-making in the U.K. and the U.S., including, of course, in administrative law.
Another influential name interested in administrative law comparison was Kenneth Culp Davis. In an important piece that preceded the APA, Davis advocated, for example, for experimentation with the use of written evidence in administrative hearings based on a similar English practice. Davis also wrote an elaborate article showing deep knowledge of the U.K. system (including participating in exchange with scholars and visiting there) as well as extensive awareness of administrative law developments in French, German, and Swedish administrative law. Everyone who’s in the know in the administrative law world has probably heard about Davis’s classic book, Discretionary Justice. But what isn’t usually remembered is that Davis followed up on that famous book by editing a volume of essays by legal academics from Europe exploring similar themes in their own domestic systems and offering comparative insights. And what is even less remembered today is that Davis authored important work for the University of Pennsylvania Law Review on the institution of the ombudsman that was deeply inspired by comparative practice. His article was nestled within a more comparative context—it preceded two additional pieces published in the same volume on the ombudsmen offices in Sweden and Denmark.
Finally, Walter Gellhorn, another important administrative law thinker of the post–New Deal era, was also engaged in serious comparative administrative law. His influential studies on tort liability for administrative decisionmakers were highly informed by “experience in some of the European states,” which was also regularly cited and discussed throughout his work (sometimes with co-authors). Gellhorn also supported publications by foreign scholars on the same subject in the United States, including most prominently a study by Harry Street, a noted English scholar, which was published in the Michigan Law Review. And later in his career, Gellhorn, like Davis a few years before him, was also drawn to tackle the issue of administrative ombudsmen. He wrote an entire book on the subject based on an extensive study of no less than nine ombudsmen systems around the world (in Sweden, Norway, Finland, Denmark, New Zealand, Poland, the former Yugoslavia, and the U.S.S.R.). And, perhaps most surprisingly to contemporary readers, Gellhorn had also shown particular interest in Japanese administrative law (and constitutional law).
B. Today: Decline
While Davis and Gellhorn’s separate studies on ombudsmen offices from the 1960s were strongly comparative, no one could seriously argue that their authors considered them central to domestic U.S. administrative law in the same way that earlier comparative work had been. And, indeed, by the time these studies were published, the decline of comparative administrative law in America was apparent. Most major contemporary scholars working since then were no longer in the business of incorporating foreign or comparative insights into their work, as Jaffe, Davis, and Gellhorn, for example, used to do. They were certainly not in the business of producing systematic studies that centered foreign law in relation to domestic U.S. administrative law as was done at the time of Goodnow and Freund. Even Jaffe, Davis, and Gellhorn appeared to have lost interest in comparison later in their careers. It was no longer, to draw on a previously cited term used by Felix Frankfurter, an “immediate concern” of theirs.
Flagship law journals in America likewise lost interest in the publication of serious comparative administrative law scholarship as they regularly used to. Much of the very minimal present-day scholarship that does have a strong comparative administrative law hook, which is for the most part written by either established foreign scholars or graduate students who have arrived for academic training in the U.S., has migrated to outlets such as specialty comparative or international law journals. And an inquiry into patterns of citations and references to foreign law across the federal bench also suggests significant signs of disappearance. Indeed, using the relevant databases it was impossible to find even one similar case pattern that resembled the discussion of the House of Lords’ Arlidge judgment in the years following the passage of the APA. Even a practice of “soft use” of foreign law in our administrative law by either courts or litigators seems to be nonexistent. It is not surprising, then, why one scholar concluded earlier that “[a] survey of American administrative law scholarship at the close of the twentieth century reveals a field in apparent national isolation.” Since roughly the mid to end of the 1960s and early 1970s, comparative administrative law has become at most “fringe[].”
To be sure, as this description itself suggests, there are exceptions to this pattern. The fact that administrative law comparison transformed into something fringe doesn’t mean that it was entirely “dead, dead, dead.” Some prominent and junior domestic administrative law (or, more broadly, public law) scholars did occasionally dabble in administrative law beyond our borders, and even participated in and sponsored symposia with foreign scholars on key administrative law issues of the day. In addition, as previously mentioned, there are some well-known contemporary U.S. scholars that do take a more frequent interest in administrative law comparison, especially Susan Rose-Ackerman at Yale, Peter Lindseth at the University of Connecticut, Francesca Bignami at George Washington, Michael Asimow at UCLA and Santa Clara, and, before his passing, Bernard Schwartz at NYU.
Still, it’s hard to escape the conclusion that these exceptions really do prove the rule. For one thing, the interest domestic scholars have expressed into what’s going on in administrative law outside American borders is quite minimal. Foreign law isn’t described in some of this work in great detail but is often addressed at an extremely high level of generality. Some of the work isn’t even fully comparative—more in the vein of single-jurisdiction or “areas studies.” A small portion of it also embraces only one (and, in my view, quite thin) tradition of comparison, namely—studies attempting to develop “general” theories of administrative law using stylized public choice or positive political theory tools. Furthermore, even those whose work is systematically comparative seem to be severely marginalized in contemporary debates and practice. These scholars work isn’t, for instance, seriously studied or cited by domestic scholars or courts. These scholars’ work, and comparative administrative law more generally, also doesn’t feature in today’s central administrative law case books or treatises used in law schools as comparative materials clearly did, for example, during the time of both Freund and Jaffe. Finally, and as also mentioned before, some of the work by those who do engage in administrative law comparison today seems to be a kind of one-way street. It’s focused on what other systems might take away from looking at American administrative law, not on what we in the U.S. might take from them. But that’s not real comparative law work. It’s more like preaching.
The contemporary marginalization of comparative administrative law becomes even clearer when one compares the current state of this field not just to its past, but also to what’s been going on in the adjacent field of constitutional law. In that field, cross-national comparison features much more broadly. There are more active constitutional law scholars in the U.S. who engage comparison systematically. Scholarship that draws on foreign systems’ constitutional arrangements to make sense of our own and propose reforms (sometimes quite radical) also appear prominently from time to time in major publication outlets. There are even a few prominent case books that put comparative constitutional law front and center. And some law schools also offer regular classes on the subject, either focusing on comparative constitutional law in general or, more concretely, on comparative constitutional design. Finally, Justices of the Supreme Court cite (or at least used to cite) comparative constitutional law and experience with some regularity, though, as alluded to before, they also passionately fight about whether they should.
In administrative law, we don’t see anything remotely resembling this. It’s as if the possibility of engaging in comparative administrative law in any meaningful capacity is almost entirely invisible today in America.
C. Explanations for the Decline
What explains all this? Why has comparative administrative law been such a dominant enterprise at the birth of the modern field in America, continued to be meaningful all the way until roughly the end of the 60s and early 70s, and then transformed into nothing more than an underdog? Something that is truly “fringe” if not very close to being “dead, dead, dead”?
One answer needs to be ruled out right off the bat. It is not that at some point when the decline in comparison became evident other countries suddenly stopped to have their own administrative states or a self-contained body of law known as “administrative law.” To the contrary: administrative states in the world have gone from strength to strength, so much so that, as one scholar put it, it is “trite” to observe their global rise and centrality. And administrative law is now similarly an established—indeed, central—field in all post-industrial liberal (and non-liberal) democracies alike. But still, we don’t see much administrative law comparison. Or, at least, we don’t see much comparative administrative law in the United States.
Again, why?
One explanation is simply that we no longer need it as much. Comparison is especially called for when creating something new, like writing a new constitution or constituting a new legal field. That question was important in the past when modern administrative law was just emerging. Like a kid who learns to ride a bike for the first time, we needed the help of those who were more mature and experienced. But today, we’ve already learned how to ride our administrative law bicycle. Comparison is simply much less called for. And it is even less called for when the sources of administrative law have themselves become indigenous to our own legal system, which happened for the U.S. most clearly with the passage of the APA.
Another explanation for the decline probably has to do with changing biographical and indeed demographical trends. The previous generation of scholars and practitioners of administrative law had close ties to foreign nations. They were often born abroad and educated there. They also spoke languages other than English and could thus easily consume foreign sources and scholarship. But today, that’s not the standard story of those who operate within the administrative law space. Most are now U.S. born and raised, speak fewer languages, and their ties to foreign nations are generally much weaker than those held by previous generations.
The decline is likely also related to the changing politics of comparative administrative law. When we turned to comparison at first, the reason wasn’t only that we needed help to ride our administrative law bike for the first time. The reason was also that some had believed that to establish a field of administrative law was mission impossible. More specifically, Albert Venn Dicey, the eminent British scholar, had famously argued at the end of the nineteenth century that the concept of a distinctive form of administrative law such as the one that existed in France and in other continental systems is foreign to the U.K. and, by extension, also to other common law systems like the U.S. It breeds, Dicey said, perverse “collectivism.” Dicey’s administrative skepticism was widely known in America. And for supporters of the rise of administrative state at the turn of the century and later, the turn to comparative law was thus necessary, indeed indispensable, to fend off Dicey’s indictment on the field. To show that there can be an administrative law (and, for that matter, an administrative state) that is attractive and sound. For some, including especially Goodnow and Freund, the attempt involved showing, through comparison, that the kind of continental administrative law that Dicey was indicting was a caricature and that it was much more liberal and enlightened than he had portrayed it. For others, including most clearly Justice Frankfurter and those who, like him, endorsed the “traditional system of Anglo-American law,” it was to show, through comparison, that the common law itself (mainly in the United Kingdom but also in other “English-speaking” countries) can be adapted to coexist with an administrative state. With the fight largely settled and administrative law and the administrative state secured (for the time), comparison’s political function simply became much less potent.
Academic fads also probably contributed to the decline in comparative administrative law in America. When the field of modern administrative law was initially born, comparison was a prominent and highly regarded scholarly method. Indeed, political science departments used to have systematic interest in comparative politics (and comparative law as well), and so did the emerging subfield of public administration. But things changed mid-century. The stronghold of comparative methods has waned to be replaced by the generalist methods of rational or public choice. Comparative public administration had also dramatically subsided.
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All these reasons surely played some important role. But they can’t possibly be the entire story. As we’ve seen, comparative constitutional law is alive and well today in America and beyond, a defined field even experiencing a sort of “renaissance.” Why not something similar with respect to comparative administrative law?
One potential explanation for this imbalance might be that comparative administrative law hasn’t stuck because of its relatively low prestige when compared with constitutional law. Indeed, administrative law is sometimes said to be the “poor relation of public law; the hard-working, unglamorous cousin laboring in the shadow of constitutional law.” A “boring” field not fit “for sissies.” Constitutional law, by contrast, is the “most prestigious field in the legal academy.” Another potential explanation might be related to the fact that Americans have become particularly averse to administrative comparison. This may be in part connected to broader cultural beliefs in the United States, which envision the country as a projector, a city on the hill, and a beacon for others. An exporter not an importer. But the apparently growing turn to administrative law “textualism” and “originalism” (and aversion to so-called “administrative common law”) could be another potential indication of the imbalance with constitutional law. After all, these methods of interpretation signal an enhanced turn inward to our own unique national sources of law and administration—rather than to looking outwardly. Or, at least, the way transnational comparison could be squared with these now ascending methods for “doing” administrative law is quite restricted.
But even this can’t tell the entire story. At least within legal academia, administrative law is highly regarded and central and has been so for a while. And the rise of administrative law textualism and originalism, while obviously an important trend, is rather ambiguous at this point. Not everyone working in the administrative law space endorse either of these. It is also not entirely clear what this administrative law of “textualism” and “originalism” precisely entail. And it should be noted that the rise of constitutional textualism and originalism didn’t prevent the emergence of comparative constitutional law—though, of course, their ascendancy is certainly part of what triggers the fight about the legitimacy of its use in the context of judicial decision-making. But, again, with respect to comparative administrative law, there isn’t even a fight.
This leaves a final potential reason for the decline of comparative administrative law. To see the issue, we need to go back a bit. In the general field of comparative law, there used to be a familiar divide between, on the one hand, public law and, on the other hand, private law. Comparison, it was believed, is simply much easier in the latter. Public law was considered “resistant” to comparative law. Its institutions or rules arise, so the belief went, “not only from deliberate design . . . [but] from both the history and underlying social problems [of specific nations], such as religious or linguistic diversity.” While in private law we could often assume some “shared understanding of political, social, and economic functions of the state,” we couldn’t assume the same thing when it comes to public law. Public law, in other words, was perceived as a unique expression of national values and beliefs and a nation’s idiosyncratic “spirit.”
Of course, this sharp divide between private and public law is no longer strongly held (if it ever was) among comparativists. It is recognized, for instance, that private law is similarly afflicted with national values just like public law is. And, again, the modern field of comparative constitutional law has clearly emerged, globally and in America, notwithstanding the beliefs in public law’s idiosyncrasies. But what had in large part enabled this blurring of the sharp divide between private law and public law, and especially the rise of comparative constitutional law as a central field, was something more. The overall sense about constitutional law was that it had gone through a unique process that crystalized the fact that its “possibilities” were becoming significant. That despite national differences, there is a sense in which countries are all engaged in some kind of similar project broadly defined as “constitutionalism.” Moreover, there was a pervasive claim that differences between nations’ constitutional laws have either begun to disappear or at least have softened in a way that makes comparative constitutional law useful, if not indispensable.
And, indeed, scholarship in comparative constitutional law has consistently shown just that. It talked, for instance, about the growing sense of similarities between nations that would make constitutional law comparison useful, identifying certain “paradigms” and elements of constitutional law that appear similar (if not “generic”) across nations. Scholarship likewise suggested that the “globalization” of constitutional law is “inevitable,” pointing to pressures in the diffusion of similar norms and institutions of constitutional law. Even highly exceptional systems—and primarily, so the story goes, the U.S.—did not seem so exceptional if looked at more closely. Civil society organizations, or non-governmental organizations (“NGOs”), at both the domestic and the transnational levels, were amplifying similar themes. They’ve created both formal and informal webs that continuously emphasized potential opportunities for cross-national learning in an increasingly “going global” constitutional law.
In stark contrast, the field of administrative law hasn’t gone through the same process. Instead, the overall impression appears to have been that while the possibilities of comparative constitutional law have been increasing with the years, the possibilities of comparative administrative law have not and may in fact have been decreasing. For instance, there was no softening of national administrative differences as has occurred in constitutional law. There were similarly no processes of globalization that had made the possibilities of administrative law seem clear. Rather, differences between nations’ administrative states and laws seem to have become sticky, persistent, and pervasive. These sticky differences in turn made it doubtful that administrative law comparison would yield real benefits that would be worth exploring. Rather, these differences would be costly and would even prove prohibitive—a real “handicap[] to accurate understanding.”
And to be sure, certainly at a surface level, and at various periods of time since the start of comparative administrative law’s demise described in Section I.A, it was easy to point out multiple significant-looking differences amongst various nations’ administrative states and laws. Take a look:
(1) Framework statutes: To start, in America, the APA could not be more central. It’s key to U.S.-based administrative law scholars as well as to U.S. administrative law practitioners’ understanding of the field. It’s considered our administrative state’s mini-constitution. But in other countries, the idea of statutory codification of administrative law and procedure was, in the past, perceived to be entirely foreign. Indeed, Germany and France used to view administrative law codification with deep suspicion. They were committed to the development of administrative law mostly through courts and reliance on “general principles” and unwritten norms. Statutory administrative law texts like the APA were anathema, and the field was viewed as “fundamentally jurisprudential” in nature.
(2) Constitutional structure and administration: The divide between parliamentary and presidential systems is, of course, familiar to us from constitutional law. But it is arguably much more critical in administrative law given how it seems to dramatically impact the administrative state’s entire operation. In parliamentary systems, political control over the administrative state is much more streamlined and concentrated than it is in the latter. Given the “fusion” between the legislature and the executive, there is much less of an incentive to draw on administration to get things done rather than on, for instance, legislation. There is also less of a need to constrain administration in ways that are different from “normal” political dynamics. In presidential systems, by contrast, things look exactly the reverse. The separation of the legislature and the executive and, more broadly, the existence of multiple veto points make the administrative state much more important for policymaking apart from the legislative route. And the divergence of institutional interests between branches creates increased incentives to establish constraints over the administrative state outside of normal politics (including by reliance on a relatively elaborate system of administrative law).
(3) Centralization v. decentralization: We know that the degrees of centralization or decentralization of administration matter greatly for how administrative law works in practice. But here, too, there seemed to be substantial cross-national differences that made it look like administrative law comparison is not worth the candle. In some countries, such as Germany, Belgium, and Spain, there used to be a very high level of decentralization—indeed, most administration in these countries was done locally or regionally, rather than centrally. In other countries, such as France, most administration is done at the central level with very little regional or local independence. In the U.S., we are somewhere in the middle—focusing for the most part on various forms of cooperative federalism and cooperative administration.
(4) Scope, underlying political economy, and visions of the state: The scope of the administrative state itself, as well as the political economy underlying it or, if you will, the general “vision” of the state as reflected in administrative arrangements, seemed throughout time to further diverge substantially across countries. For example, the possibilities of nationalization of economies and industries have been extremely limited in the United States. America, it was said, saw itself as a “steering” state that can, at most, intervene to regulate the market. It moreover saw itself as a “reactive” state—one that provides a framework for social interactions, rather than directly or proactively managing them. But in other countries, the situation appeared quite different. Some countries did rely on nationalization much more substantially than America did. They were less in need of “steering” economies and societies, and more in the role of “directing” them given the high level of state control in markets that is the result of nationalized industries. Other jurisdictions also rejected an exclusive vision of reaction. They firmly endorsed a “positive” and “activist” state role, which doesn’t just create a thin framework for social interaction, but also proactively manages and coordinates it.
(5) Judicial systems and the place of administrative law: Perhaps most vividly because of how much the field of administrative law is traditionally associated with judicial review, there seemed to have been substantial cross-country variation in structures for judicial control of administration, as well as in how different countries view the place of administrative law within the legal system itself. In some systems, like France and countries that followed in its footsteps, judicial control of the administration is done through a uniquely designated system of administrative courts that is part of the executive branch, performs both advisory and adjudicative functions, and is composed of personnel drawn from the civil service who are trained separately from “ordinary” judges. There was moreover a strong conceptual and doctrinal separation between administrative law and private law. This is the famous droit administratif that, as mentioned before, Dicey came out so strongly against and that was moreover rejected by those who supported the emergence of a distinctive “Anglo-American tradition” in administrative law. In other countries, like Germany, administrative law is similarly perceived as a special body of law and different from other fields as in France. But the control over administrative law is nonetheless vested in uniquely designated courts of law, not executive institutions as they are in France and the other systems that build on droit administratif. Finally, in yet other systems, particularly those like the United States and the United Kingdom (the “Anglo-American tradition” again), administrative law was entirely continuous with the regular court system. Administrative law disputes are therefore resolved by regular judges with regular (and general) training in law. Administrative law and private law are moreover not tightly if at all separated.
(6) Civil society organization: We know that civil society organization is crucial for administrative law. But nations seemed to diverge substantially in that as well. In America, structures of organization are plural and diverse. We see a substantial amount of diverse civil groups with multiple different claims over policy and administrative law. But in European nations, and other countries—for example in Latin America—forms of “neo-corporatism” were quite powerful. There wasn’t, in other words, a strong dynamic of pluralist policymaking. Civil society in those countries was traditionally quite weak, and the state used to work with a limited (and often state-funded) groups of stakeholders in making administrative policies.
(7) Bureaucratic ethos and tradition, and the bureaucracy’s place in the culture: Administrative law is also, in large part, the law of bureaucratic organizations. The way bureaucracies behave is thus central to the field. But countries’ bureaucracies appeared, again, to be dramatically divergent when compared to one another. On paper at least, national bureaucracies were trained differently, represented potentially different societal classes, possessed a different ethos toward the meaning of public service policy, and had different understandings of how much of their work is discretionary and political (and how much they work in environments that are themselves political and in constant interaction with political appointees). So, for example, a law for the U.S. bureaucracy, which is penetrated by a high level of political appointees, seemed to be quite different from the kind of law appropriate for the Westminster bureaucracy depicted in Yes, Minister or the German Rechtsstaat bureaucracy which developed a high ethos of legalization and rule of law. And a law for a cadre of professional French bureaucrats who were trained at a designated professional school and who have different understandings of what discretion means, would be different from the law that we would write or try to formulate for an American “street-level” official. To add to that, societal reaction to the existence of a bureaucratic class that administrative states had made so central also seemed importantly split across nations. In America, a culture of bureaucratic skepticism was believed to be prevalent—some say it is perhaps part of our DNA. But in other places, bureaucracies didn’t seem to necessarily raise similar concerns or passions. Bureaucracy in these countries was just a benign part of life.
(8) Regulatory culture and style: Countries moreover appeared to diverge in their regulatory culture much more broadly. In the U.S., a paradigm of “adversarial legalism” seems to be quite dominant, by which policy is formulated through the clashing of interests that are often channeled through the courts. There has also been for a while now a generally favorable attitude toward regulation through rulemaking and formalized decision-making modes more broadly (even if the APA calls them “informal”). But in other countries, the regulatory culture seemed quite distinct. Rather than adversarial it was sometimes characterized as “consensus-based.” And rather than formalized, other countries seemed to be much more informal, and less rule bound. Regulation based on trust and more confidence in the “tap on the shoulder” or “good chaps” kind of process seemed to be pervasive outside America, including perhaps most clearly in the U.K.
(9) Legal culture and style: Legal styles—not only regulatory styles—also appeared to be dramatically different between jurisdictions. Though, as previously discussed, there is now a growing trend towards administrative textualism and originalism, it is hard to deny that administrative law used to have a deeply pragmatic and theoretical cast in America. Indeed, American administrative law sometimes appeared to be in constant search of a theory—whether a democratic theory, moral theory, or something that is being hypothesized and tested empirically. “We are all [administrative law] realists now.” But other systems didn’t appear to have a similarly pragmatic or normative attitude toward the subject of administrative law. They were much more administratively doctrinal and technical than Americans have been for quite some time. The difference was especially striking when compared with Germany, which was indeed characterized by a strongly scientific and juridic style of “doing” administrative law (and “doing” law generally). But this was also the case with respect to our sibling from the “Anglo-American tradition,” the United Kingdom. In fact, when commenting on administrative law in the U.K. in the 1960s, Kenneth Culp Davis could barely disguise his aversion to the distinctively English legal style of the time. He wrote, for example, that scholarship in the U.K. on administrative law needs to move from “bombast to realism” and that administrative law there more broadly suffers from a problem of “practical jurisprudence.” And to be sure, other countries didn’t always appreciate the American style of administrative law. The American realist, pragmatic, or moralistic jurisprudence both in general and specifically in administrative law was even ridiculed in the U.K. as nothing more than “Jazz Jurisprudence” for lacking sufficiently robust doctrinal chops.
(10) Complexity: Finally, the complexity of the field probably also contributed to administrative law comparativism’s demise. Indeed, certainly compared with constitutional law, administrative law seems to have a “higher degree of technical complexity” in large part “due to a much greater amount of regulation and case law to be studied than in constitutional law.” Administrative law, in short, is distinctively hard or, as Justice Scalia described it in a term already mentioned before, a field not apt “for sissies.”
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With such sense of deep and sticky divergence and complexity, and no similar move to what had occurred in constitutional law by which the possibilities of cross-national comparison have been so forcefully emphasized, it is not entirely surprising that the field of comparative administrative law died out or became nothing more than a sideshow. Cumulatively at least, the variances highlighted above all give the nagging sense that administrative law comparison is likely to prove particularly tricky, much more so than constitutional law. That it may not be worth the candle.
II. WHY REVIVE?
Not every trend of the past requires reviving. Sometimes it’s better to leave things in the past and move on. And not everything that is on the fringe needs to move to center stage. Sometimes there are good reasons for leaving things well outside the spotlight. But that’s not the case with comparative administrative law. Reviving it to become more meaningful would serve valuable goals. Moving it from the periphery and closer to the core would put us in a better place to face the moment our administrative law finds itself in. This Part explains why.
A. Why Compare?
Start at the beginning. Why even do comparative law? Why is it important, in other words, to study the way in which different jurisdictions’ legal arrangements and institutions diverge or converge? Academic work on this is broad, sophisticated, and complex. But without doing too much violence to various important subtleties, it seems fair to identify four general uses for comparative law.
The first might be called genealogical. The history of nations strongly suggests that there were always important connections between jurisdictions—people moving across geographical borders, infusing their destination with legal ideas they brought with them in their metaphorical backpacks from back home (if not imposing them), or taking ideas to explore and implement (sometimes colonize) back home. The study of comparative law can thus enable us to see patterns of movement and the diffusion of such ideas that we didn’t recognize before, thereby deepening our understanding of legal rules’ and institutions’ origins and evolution.
A second purpose of comparative law, probably closer to the core of the field, might be called reflective or critical. After all, we’re not bionic or faceless people. We usually work within confined domestic borders, studying how laws and legal institutions “of the place” can be explained, should be fixed, or could be influenced, how to decide according to their rules, and how to even think about them. We also care, often intimately, about our own geographic situation and the law around it. How could we not? But comparative law seems indispensable for even that type of process. Indeed, seeing how things work elsewhere in a foreign land can serve as a crucial “stimulus to legal self-reflection” about our own domestic predicament. It provides us with a certain remoteness from our unique location and thus teaches us “to be more critical about the functions and purposes of the rules” we regularly study or operate by. Comparative law also teaches us not to “accept [these rules’] validity purely because they belong to [our] own system of law,” partly because the comparative enterprise “often picks up issues or makes connections that remain invisible” and because that enterprise diffuses “false necessities.” By way of comparison, and looking at what’s different and what’s the same across borders, we can also gain a better understanding of what it is exactly that makes us unique and special, not exactly like everyone else. For it is through comparison that we can often more readily realize the existence of “competing political visions and contradictory normative ideals” as they are reflected in the law. Following comparison, we can then get back and reflect on how our own laws and institutions express those ideals or rather fail them.
Doing comparative law also has other relevant side benefits that support this key goal of self-criticism and self-reflection. For one thing, comparative law can be an important part of liberal education in law, in the sense that knowing something meaningful about how other countries in the world “do law” is part of the relevant knowledge that any sensible and mature lawyer should possess. And learning about others can be a crucial background condition that would allow us to enter into conversations with others in the world, conversations which, in turn, can enable the kind of learning and reflection that is a central promise of comparative law (in large part because it signals both collaboration with others and respect for them).
A third use of comparative law may be understood as directly reformist or institutional. We do comparison as a technique of self-improvement. We ask: If other countries are facing what seems like a similar legal problem or a challenge to a legal institution, and they’ve found an arrangement that seems to work for them quite well, perhaps it could also work for us? Indeed, comparative law is sometimes offered as a way to figure out “which solution of a legal problem is the best” or is “clearly superior.” Or, if not the best or clearly superior, then at least a solution that’s less of an “imperfect alternative” from what we presently have such that it would be sensible for us to “transplant,” “migrate,” or “borrow” it in some form and after proper adaptation.
Finally, and even if solutions that exist in comparative law can’t really be transplanted, migrated, or borrowed in any form in the short-term, perhaps because the legal culture in a specific country makes it entirely unsuitable for the other country, that doesn’t mean that doing comparative law is pointless. In these situations, the final use of comparative law kicks in. Comparative law can be a technique of cultural transformation. Doing comparative law can be a move within the given legal culture that tries to adapt or complicate it to make it more amenable in the future for desirable change. Both public and official discussion of the possibility of learning from other countries and even transplanting their ideas in some form act as a kind of constructive “irritant” and a technique to proactively engineer legal culture to make it in the future something else that could potentially be better.
As may be expected, comparativists often fight, vigorously, about which goal amongst these is the most important or valuable and which may even be dangerous. On one end of the spectrum, there are so-called “universalists” who endorse an “ideology of similarity.” They believe that, despite apparent differences, many of us are essentially the same. Consequently, universalists are drawn to the most ambitious reformist, institutional, and cultural transformative goals of doing comparative law (or, at least, they feel reasonably confident in doing so). By contrast, there are so-called “particularists” who endorse an “ideology of difference.” They claim that “there are differences in detail” between legal systems “that are so profound they call into question the extent of a shared foundation of legal thought.” For particularists, comparative law is at most a reflective and critical enterprise, not a reformist or transformative one. Transplantation or borrowing from one system to another, they argue, is utterly impossible. In fact, particularists occasionally worry that even reflection and self-critique through comparative law would have unfortunate consequences (especially that of tacit colonization and further marginalization of non-Western cultures and traditions of law).
We need not take a decisive stand on each of these poles right now. As we will soon see, a sensible comparative approach in general, and to administrative law in particular, moves away from the poles to take a position someplace in the middle (though, for reasons that will also be evident later, and in the administrative law context at least, probably closer to the particularist pole than to the universalist one). But before we get to all that, something else needs to be said.
B. The (Renewed) Possibilities of Comparative Administrative Law
All the goals of doing comparative law just discussed are general in nature. As such, they apply in principle to any field of law, including, of course, to administrative law. But with respect to this specific field, something seems to be standing in the way. As we saw in Part I.C, the demise of comparative administrative law was not just coincidental. Rather, it was explained to some important extent at least by a strong sense that the possibilities of doing comparative administrative law are quite limited. That, especially when compared with constitutional law, cross-national differences between systems’ administrative laws remain persistent and deep. And that, again in contrast to constitutional law, there was no similar globalization of administrative law that made the prospects of comparison promising.
It has been so for a while, but we are now finally at a point where we can decisively say that this is no longer true. The possibilities of comparative administrative law are now evident and clear once more, very much like they have been for some time now in the field of comparative constitutional law. Indeed, just as in constitutional law, differences between national systems’ administrative laws and structures have similarly begun to “fade” or at least are now much more “fluid.” And as with constitutional law, administrative law has also gone through a roughly similar process of globalization or “universality.” The conditions are now finally and securely ripe for the revival of comparative administrative law.
1. Cross-National Administrative Law Fluidity
To see this, begin with the fading of cross-national differences or their fluidity. Section I.C identified multiple dimensions along which jurisdictions seemed to differ from each other in the ways they organize administrative states and laws. But looking more closely now, and with the benefit of the passage of time, a much more blurred picture is revealed.
(a) Framework statutes: To begin, while in the past many systems outside the U.S. rejected the idea that administrative law should be grounded in a framework statute a la the APA, that is no longer the case. The introduction of framework administrative law statutes is now a clear and decisive global trend. Germany was early to adopt the change, despite strong resistance initially in the late 1970s. And many others have followed in its footsteps, both in Europe and in Latin America, with the latest addition being France in 2015.
(b) Constitutional structure and administration: The divide between parliamentary and presidential systems, arguably more important for administrative law than for constitutional law, is also not as stark as it used to be. In parliamentary systems in Europe and elsewhere, there is a clear trend whereby traditional parties have weakened, exemplified by both the appearance of new smaller parties in parliaments across the globe and by the noted empowerment of so-called “backbenchers.” This obviously makes it much harder for the government of the day to operate through parliamentary channels to get its policy created and, accordingly, complicates claims that branches in parliamentary systems are inescapably fused. The need for administrative law and constraints on the power of administration seem therefore much more pronounced than they used to be even for parliamentary systems. The rise of empowered prime ministers in various parliamentary democracies who manage empowered independent offices that aim to execute policies that come directly from prime ministers themselves, rather than their cabinets, is another indication of the possible growing “presidentialization” of parliamentary systems. And to be sure, the same blurring of the lines exists on the presidential side as well. Here, the rise of “separation of parties, not powers” coupled with the reality of frequently divided government (at least in the U.S.) also puts pressure on the idea that presidential systems are dramatically different from parliamentary ones. Dynamics expected in theory to occur only in one type of system appear regularly in both, complicating the idea that administrative states or laws always work in extremely divergent ways depending on constitutional structure.
(c) Centralization v. decentralization: Differences in the degree of centralization of administrative states worldwide are much murkier today as well. Most clearly, there is a growing trend of further centralization even in the most ambitiously decentralized administrative systems. This centralization is expressed either through formal processes, by which some systems have cut back on the independence of decentralized units to make decisions themselves. Or, as is often the case in the U.S., this is expressed through informal patterns by which the decentralized units implicitly delegate or are dictated from above the content of their policies within the dynamics of central/local cooperation, or in light of the rise in power in the role of chief executives. Even the U.S. has now gone through a substantial (even if sometimes opaque) process of centralization given the more dominant role of the presidency in administration.
(d) Scope, underlying political economy, and visions of the state: Conflicting views of political economy and the domain of the administrative state vis-à-vis the market also substantially changed with time. It is now a familiar story that social democracies around the world have been endorsing more and more patterns of privatization and delegation to private entities or the market. They have, like the U.S., also embraced a rhetoric of government in the role of “steering” and “regulating” rather than “planning” and “directing.” And they have moved from being ambitiously “positive” states to being more “reactive” ones. But it is fair to say that even the U.S. has now become more complex and varied than in the past. Discussions of moving the U.S. economy and society to patterns more evident in social democracies, including by endorsing “public options” and national ownership, are a much more substantial theme in American politics today than they used to be. There are also increasing calls that seek to transform the U.S. into becoming a much more “positive” and “innovative” state than in the past.
(e) Judicial system and the place of administrative law: Most dramatically perhaps, the differences between the way systems adjudicate administrative law disputes and how they perceive administrative law itself have also gradually faded. In France, the idea of a droit administratif in its clearest form has dimmed. Most conspicuously, the Conseil d’Etat, which is the supreme adjudicative body for administrative law disputes in France, its “nerve center,” has gained both formal and informal independence through the years that make it hard to say, notwithstanding its location within the executive branch, that it is dramatically different from an independent court. The Conseil d’Etat’s body of law, and French administrative law generally, are also increasingly developing a “liberal” sensibility that makes it not that different from conceptions familiar from common law systems relying on the rule of law. This occurs in part because of a recent revolution in the Conseil d’Etat’s philosophy and jurisprudence. But it is also being encouraged by the growing importance and prestige of the Conseil Constitutionnel, which is known for a more explicitly liberal and civil rights–based jurisprudence. In Germany, while the separated and unique system of administrative courts persists, it too has been importantly transformed. The penetration of the general court system to the administrative one is growing in Germany—especially in light of the jurisprudence of the Federal Constitutional Court which, like the Conseil Constitutionnel in France, tends to constitutionalize further and further areas of administrative decision-making, making German administrative law less distinct from other forms of law.
And lastly, common law systems are themselves exhibiting transformations that make them much less distinct or different from their continental siblings. Australia, for example, now endorses a model of administrative tribunal adjudication that is constitutionally housed within the executive branch rather than in a separate judicial branch even though it retains commitment to adversarial adjudication and impartiality, which are centrally common law in nature. And the U.S., too, no matter how some may view this as shocking, reveals some important droit administratif–kind of features. We are familiar, for example, with the fact that the D.C. Circuit is a rather specialized de facto administrative law court, even if informally and by geographical chance. And the reality that most administrative law adjudications today—perhaps in spite of original intentions—occur outside the confines of the APA and its prescribed procedures, is important in this context as well. That reality means that adjudication throughout the American administrative state is much less judicialized in nature and thus a so-called staple of the Anglo-American tradition of common law–like administrative law adjudication. With the recent jurisprudence of the Supreme Court that insists on what seems like an ever-growing presidential control over the administrative law adjudication apparatus, the movement away from the “pure” Anglo-American tradition of administrative law into something more familiar in continental administrative law is even doubly evident.
(f) Civil society organization: The organization of civil society in nation states has also changed to become less sharply divergent and more globally fluid than in the past. The neo-corporatist model, prevalent in European nations and other countries around the globe, has weakened. We see for example the growth of a more pluralist and robust civil society in previously corporatist nations. That growth results in higher expectations that civil society will penetrate policymaking much more substantially and will not suffice with the previous state according to which civil society had only a minimal involvement outside state-funded and subsidized networks. By contrast, scholarship has exposed that corporatism also lives in some pockets of U.S. administrative law policy, whether in explicit form (such as in the banking and energy industries) or more implicitly (once we do a deep dive into the organization of allegedly pluralist civil society groups).
(g) Bureaucratic ethos and tradition, and the bureaucracy’s place in the culture: Pressure is also mounting on the distinctiveness of nations’ separate bureaucratic traditions. Recent studies show, for example, that even a bureaucratic tradition and style that had internalized a commitment to a highly legalized way of working, such as the German bureaucratic tradition of the Rechsttaat is, in practice, not that divorced from being political and discretionary in ways familiar to us in America. The Westminster bureaucracy of a professionalized mandarin class hailed by people like Frankfurter had also gone through substantial changes—including by the increase of the use of politicized bureaucracy (also known as “special advisers” or, briefly, SPADs). Even the famous bureaucratic universities or training centers that exist in some countries in Europe no longer possess the same prestige they used to have and may be facing reforms in some countries. By contrast, in the U.S., despite the environment of high politicization and discretion, ideas about an ethos of bureaucratic independence and the existence of unique accountability of the civil service to standards of professionalism and rule of law, which are said to be distinctive to bureaucracies across the Atlantic, also seem to be powerfully present. Even the normal cultural dispositions states used to have toward the bureaucracy are revealed to be more complex. The American public, perhaps surprisingly, does seem to show an impressive level of trust in the civil service. And in other countries, such as the U.K., the image of bureaucrats running wild is similarly much stronger than in the past—perhaps part of what Yes, Minister was, in truth, all about.
(h) Regulatory culture and style: It is also not true anymore that regulatory styles and cultures so dramatically diverge across states or regions. Studies now show that a culture of “adversarial legalism” has likely emerged in Europe as well, even if it is distinct in some way from its American counterpart (and is hence dubbed “Eurolegalism”). An attraction to more formalized styles of regulation is evident as well even in countries such as the U.K, in which the tap on the shoulder style of regulation seemed quite strong in the past. And even in America, while its commitment to rules and legalism is rhetorically and institutionally strong, the picture is also much more mixed. For instance, rules in the U.S. also have “unrules” and much of the regulatory action may in fact occur there. In addition, studies on the implementation of rules show that rules continue to be in many instances much more flexible and informal despite other pretensions. European-style consensual regulation is also clearly a theme in America today.
(i) Legal culture and style: In similar spirit, it is simply no longer the case that we can contrast so forcefully between legal styles and cultures across nations. As mentioned before, Germany, for example, has long committed itself to a form of “scientific jurisprudence” that seemed, to American eyes, quite bizarre. But its pragmatism, empiricism, and openness to value choices in “doing” law (in general) and “doing” administrative law (in particular) is evident in some pockets and is in fact expanding, partly in response to changes in domestic academic fads in Germany, but also partly due to the previously mentioned increased influence of the Federal Constitutional Court. Kenneth Culp Davis’s indictment of administrative law jurisprudence in the U.K. as “impractical” and unnecessarily “bombast[ic]” is also no longer accurate. The turn to pragmatism (what is sometimes called the “functional style”) and to value-laden reasoning in administrative law is now evident everywhere in the U.K. and across the common law world (even if some still try to sling arrows at it in favor of more of old-school English formalism and doctrinalism). In fact, when one looks cross-jurisdictionally, it is the American system, not the U.K., that now could be described by Davis as bombastic and lacking appropriate realism, in large part given the endorsement of more and more textualism and originalism, including, as we’ve seen, in administrative law.
2. The Globalization of Administrative Law
There are many potential developments that might help explain why these cross-national differences have been fading away gradually in all the ways I have flagged above (or, at least, why they’ve become more fluid). Some of these explanations are likely “bottom-up” and reflect real changes that exist within national societies and administrative systems to which law and institutions ultimately respond. Moreover, some of these can be the “top-down” consequences of the globalization of constitutional law. But it can’t be seriously doubted that some of the process is also explained by more top-down globalization of the field of administrative law itself. Indeed, we live today in a world where administrative law has been universalized to some important extent.
Perhaps the most distilled example of this emerging and increasing administrative law globalization is the European Union (“EU”). To be sure, the EU doesn’t codify or require its members to adopt similar systems of administrative law. The starting point at the EU is one of administrative plurality. But as many scholars have noted, there is undoubtedly an evident trend of at least “gradual convergence” of administrative laws of EU member states. This occurs through various formal mechanisms that operate in the EU to exert pressure on member states, including the development of “general principles” of administrative law by EU courts (both the European Court of Justice in Luxembourg and the European Court of Human Rights in Strasbourg), the existence of soft law principles of “good administration” identified by the EU ombudsman, and sector-specific EU regulation, which frequently imposes domain-specific requirements on member states. But this gradual “Europeanization” of administrative law across Europe also occurs through more informal means—including especially the existence and influence of various networks of European-based scholars who work to distill what they argue is a “common core” of administrative law across European states and the existence of “Pan-European principles of good administration.”
Intra-EU pressures and attempts at globalizing European administrative law systems to move them in similar directions are highly salient, both formally and informally. They are also the subject of intense scholarly and practical debate. But it would be wrong to think that the globalization of administrative law is limited to that regional context alone. It exists much beyond. We are now familiar in the administrative law world of the reality whereby “international aspects of regulation” penetrate to the level of domestic regulation in a variety of ways, both in the United States and outside of it. As various scholars have observed, “international norms [continuously] reshape decision-making processes within domestic bureaucracies.” But what is important to note here is that this sort of international penetration into the domestic is not done only with respect to substantive norms of regulation—constraining the type of choices domestic countries have with respect to how exactly to regulate a market or render services. Increasingly, international bodies are interested in influencing administrative law processes themselves—including the way administrative agencies conduct hearings, provide reasons, allow for public participation, formulate general policies, facilitate administrative decision-making independence, guarantee transparency, and evaluate regulatory decision-making.
The Organisation for Economic Co-operation and Development (“OECD”) is one central international body that has made decisive moves in this direction. In a series of documents, the OECD has addressed various administrative law issues ranging from agency independence, to sound public governance, and more generally, regulatory policy, identifying principles of administrative law at a high level of generality that should be best practices for all its member states—including integrity, openness, inclusiveness, accountability, and more. The World Trade Organization (“WTO”) works on similar issues as well, consistently pushing an administrative procedural reform agenda through the various formalized tools it possesses. But, to be clear, this is really just the tip of the iceberg. In virtually any international regulatory domain from global competition law to global environmental law, a central focus goes beyond norms of substantive regulation and penetrate, if not center on, the organization of the administrative apparatus or its procedures. In fact, the regulation of administrative procedure seems so internationally central nowadays that some scholars have been calling for the explicit embrace of a “global due process” norm or a “cosmopolitan administrative law” by which international bodies, laws, and transnational NGOs will pressure nation-states to develop similar administrative law principles to the benefit of a more universalized, cosmopolitan, and open world.
A final indication for the contemporary globalization of administrative law is probably the rise of the so-called Global Administrative Law (“GAL”) movement in the first decade of the twenty-first century. In contrast to previous examples that speak to how global institutions impact domestic administrative law and institutions, the GAL movement is more centrally focused on global institutions themselves. What the GAL movement suggests is that general principles of administrative law—ones that we can see in several systems in some form—either already guide global institutions in their own struggle to achieve normative or sociological legitimacy, or that they should embrace general administrative law principles to achieve that sort of legitimacy. GAL, in other words, assumes that there is something to be called administrative law that crosses national borders, a kind of “due process beyond the state” or “international administrative law.” GAL’s whole premise can’t be squared with a sense of inevitable complexity, and even impossibility, for comparative administrative law. There exists, GAL scholars contend, some form of a global administrative law “baseline,” which either draws from the ability to compare systems and assume some common core amongst them or which draws on the standards of globalized administrative law that bodies like the OECD or the WTO endorse and push national systems to adopt.
3. The Net Result
All this hopefully goes to show that administrative law has indeed been going through a significant process of both cross-national fluidity and internationalization. That process is clearly no longer unique within public law, as it may have been in the past, to the exclusive domain of constitutional law. Constitutional law’s “unglamorous cousin,” administrative law, has finally matured as well, breaking more decisively now from its previous geographical shackles or silos. These shackles were in large part responsible for the demise of comparative administrative law.
Of course, it is also important not to take the point here about this cross-national fluidity and globalization of administrative law too far. For one thing, the normative underpinnings of the globalization project, both in general and in administrative law particularly, are highly disputed (a point to which we also need to be aware, as we will soon see, when “doing” comparative law). In addition, there is now a well-known “ ‘backlash’ against global norms and institutions” that we must consider, and which may at a minimum complicate the sense of even gradual convergence amongst nations and systems. What’s more, the globalization project of administrative law, in the EU and beyond, didn’t erase all significant national differences. Differences across countries and regions clearly remain, and some of them are meaningful (as portions of the discussion above already suggested and as the discussion further below, in Part III, will moreover suggest). At bottom then, it is certainly possible that the processes of globalization and the massaging of cross-national administrative law differences have been weaker when compared with the parallel processes that occurred with respect to constitutional law. Consequently, there may be something real in the idea that administrative law more deeply reflects the image of a particular country and its “spirit” than even constitutional law does.
But even with all these important caveats in place, the point certainly is that the sort of change I have been describing that did occur with respect to administrative law in recent years is a meaningful one. It highlights that it is now simply much less convincing—even farfetched—to say that comparative administrative law is not worth the candle as we may have been able to say in the past. As a result of the administrative law fluidity and globalization that had clearly occurred, comparative administrative law is surely possible now. At a minimum, we now clearly have a sort of cross-national “lingua franca” for administrative law—by which we can trace more easily and comfortably the way administrative law processes work across systems, whether these processes are about hearing, participation, or reason-giving; whether they are about making rules or adjudications; or whether they concern the need to allow for decisional independence, political dependency, or the technologies of evaluating regulatory policymaking. More ambitiously perhaps, we can now see that even if nations still importantly diverge in their evident “fluidity” and flirtation with globalization, they do seem to be committed, overall, to something we may think of as a joint “administrative law project.” That project is, on the one hand, a project of creating a body of law that facilitates national administrative states that “get things done”—that is, enables them to achieve various policy goals that are of interest to state organs as effectively and successfully as possible and through reliance on administrative bureaucracies. On the other hand, that project is also unified in the need to have a body of law for an administrative state that could ultimately be squared with other values liberal-democratic states seem to prize, whether these values are the rule of law, representative and participatory democracy, or the protection of rights.
And, indeed, precisely because of this change and transformation that had already occurred in the field of administrative law, it is not at all surprising then that recent years have suddenly begun to signal some initial signs in the direction of a comparative administrative law revival, abroad and even in America. Indeed, more and more work that takes comparative administrative law seriously is beginning to appear, with various scholars now unapologetically announcing that administrative law is comparative law’s “next frontier.” There are now also more conferences devoted to the topic, especially across Europe and the common law world. These conferences represent the emergence of growing transnational networks of scholars who have a systematic interest in comparing administrative states and laws. Even some American law schools that had previously ignored the existence of comparative administrative law have started lately to sing a different tune. In fact, even comparative public administration seems to be “back in.”
And it is at this point that we must go back to the general values of comparative law, discussed in Section II.A. Now that the path for doing comparative administrative law has been reopened for all to see, these various goals start to seep back in, so to speak. Like they were for the pioneers of the field and those who followed in their footsteps in America, the uses of comparative law would prove a real asset for our own domestic field of administrative law today. Not taking advantage of them, on the backdrop of the already occurring change, would be a huge mistake.
To start, doing comparative administrative law would help us in the historical-genealogical sense. Through comparative administrative law we might, for example, better understand the origins of our American system of administrative law, perhaps discovering that some of it isn’t entirely indigenous but in fact originates from a different soil. It was brought to us at the time when the pioneers of the field of administrative law were, as Section I.A discussed, “self-consciously” exploring foreign law.
Doing comparative administrative law will also contribute to our ability to reflect on our own domestic administrative law and critique it. After engaging in comparative administrative law, we might for instance stop taking some of the present arrangements we work by in administrative law so obviously and strictly and perhaps begin to imagine alternative trajectories instead. We might also be able to see more sharply which components of our own administrative law are unique and reflect our own particular national predicament. What is it, in other words, that’s distinctive about America and the way it “does” administrative law? How exactly do we balance the competing impulses underlying the field of administrative law and our own “administrative law project”: having administration that gets things done but also being attentive to the demands of democracy, rule of law, and rights? Comparative administrative law can moreover help us see more crisply if our current administrative law truly abides by those ideals or rather fails them, and how, as Goodnow put it, to better face our “modern complex social conditions.”
Doing comparative administrative law can also prove useful for consideration of beneficial institutional and legal reforms. Maybe we will be able to get fresh ideas for how to improve our own administrative law, and better calibrate its animating ideals, from looking at other systems and “borrowing” them (after, of course, suitably adapting them). Maybe the experience in other systems can give us the confidence needed to make changes that we were thus far hesitant to pursue or can serve as a test case for the kind of experience we were lacking. And even if direct reform or borrowing is not in the cards today, perhaps because our administrative law culture might be too resistant to it, we needn’t necessarily despair. As we saw, doing comparative law can serve as a means for pushing our administrative law culture (and general legal culture more broadly) in the direction of change, to “irritate” or “entrepreneur” it, so that it would eventually be able to change in what might possibly be highly desirable directions.
C. Comparison in an Age of Administrative, and Democratic, Pressure
The possibilities of comparative administrative law are now finally looking promising again after years in which they appeared quite gloomy. But there is in fact reason to think that the possibilities of administrative law comparison, and the benefits we would draw from it, are particularly urgent today.
As anybody who has been paying even minimal attention to the field should know very well, our administrative state is under intense pressure today. It is attacked from all sides, and some of its central tenets are rapidly eroding. On the political right, administrative law is being challenged for allowing agencies to “run amok” without sufficient legal and political supervision and accountability. Our newly constituted Supreme Court is not only reflecting much of this attack, but also seems to be spearheading it. Indeed, the Court is now tinkering substantially with various components of administrative law. It has reshaped entire structures of administrative adjudication and agency design to supposedly improve political accountability in the administrative state. And the Court is also clipping the wings of the relatively broad interpretive freedom agencies used to enjoy by announcing a newly revamped “major questions” doctrine and, as we have seen and will soon see again, by reevaluating the validity of Chevron deference. With this Court, even more may be in the cards in the near future.
But make no mistakes: administrative law is also being attacked from the political left though, of course, for very different reasons. It is argued, for example, that our administrative law suffers from a “procedure fetish” that makes it overly obsessed with the niceties of process on the expense of actually achieving real results that would improve people’s wellbeing. It is argued as well that administrative law is not nearly as democratic and participatory as it claims to be. And finally, critics mostly from the political left argue that there are pockets in our administrative state of deeply troubling bureaucratic oppression, such as in the context of the increasingly growing surveillance or national security state or in the field of immigration.
Scholars, commentators, and policymakers are now intimately and persistently engaged in inquiring how to respond to the current malaise. But comparative administrative law could be an important sort of response, or, at least, an asset in considering what kind of responses we should ultimately devise. As suggested before, comparative administrative law can enable us to see better which elements in our administrative law are deeply intertwined with our own distinct situation in America. But that sort of inquiry seems particularly valuable in the face of the pressures the field is facing. It can indicate to us which components in the current critique or attack on the legitimacy of the administrative state, from either the right or the left (or maybe the center), are seriously misguided, failing to see more fully or faithfully the conditions that brought our administrative law to where it is today. Alternatively, and more provocatively perhaps, this type of comparative administrative law inquiry can help us realize when the present critique of our administrative law might actually have a point. By looking at others, maybe we will suddenly recognize places where our administrative law is currently missing opportunities to restrain administrative governance more robustly for the sake of a much-needed protection of democratic and legal values or rights (as argued by critics from both the political right and the left). Conversely, maybe by looking elsewhere we will be able to identify “pockets” where our administrative law is in fact excessively restrictive; that it could and maybe should release some of its grasp over administration for the sake of achieving desirable governmental goals more effectively and speedily (as argued mostly by critics on the left).
Turning to comparative administrative law at this moment of pressure and stress can go beyond the mere diagnostic and reflective. As discussed before, comparative administrative law might offer useful suggestions for reform or borrowings. But in the current climate, something like this can be just what the doctor ordered. Because other countries are also engaged in a roughly similar “administrative law project” of finding the right balance between the need to enable the administrative state as well as restrain it, it is not at all farfetched to think that these countries had possibly landed on an arrangement, a framework, or a construct that does this effectively and that is missing in America. As a result, considering whether to export or at least build on any of these can thus prove important; it will enable us to adapt our own administrative law at this particular time of pressure such that contending forces in it might possibly “come to rest.” And, again, even if American administrative law culture would prove resistant to immediate transplantations from abroad (notwithstanding how suitably adapted we would make them), drawing on comparative administrative law can help us to potentially nudge our legal culture to move it to a place where stress will be diffused and resolved.
It is true that in America we’re used to telling ourselves a story according to which there’s something unique about our administrative state and what appears like its persistent legitimacy crisis. But that exceptionalist story is decidedly false. Administrative states around the world also go through episodic shocks and crises just like we do. In the not too remote past, the major shock might have been the rise of the deregulatory movement, which clearly challenged many administrative states around the globe. But today, the source of the shock is deeply related to what appears to be a crisis of constitutional democracy around the world as well as to the effects of the global COVID pandemic. On the one hand, constitutional democracies and administrative states around the globe are now being attacked for failing to be fully representative of the people themselves. They tend, as the attack goes, to benefit only a relatively thin layer of elites who are also deeply entrenched within the structure of the state, including by gaining control of the administrative apparatus (the so-called “deep state”). On the other hand, constitutional democracies and administrative states in various nations are also accused of being deeply ineffective—not doing enough to respond and achieve various policy goals or solve the challenges of a global pandemic, including by not letting the administrative apparatus do more (or by relying on administrative states that aren’t sufficiently agile and responsive but instead are overly static and pejoratively “bureaucratic”).
The current crisis in our own administrative law may in fact be just an expression, an instantiation, of this more global phenomenon as it translates to the conditions of the place. And to the extent that this is really the case, engaging in serious comparative administrative law seems doubly important. Not doing it might even be borderline irresponsible. If other states are also facing similar pressures on their own respective administrative law projects episodically and at this time, engaging in comparative administrative law can open the door for insights that we could not have gained before by just looking under the lamppost. Maybe other systems’ reactions to the current pressure on their own respective administrative states may prove provocative also for our own moment of crisis. Maybe they can offer solutions or devices that we may build on at home. And even if not (or not just yet), engaging in dialogue with comparative administrative law can be helpful in and of itself. We can learn from these types of conversations about other efforts being done and challenges being raised, further greasing the wheels of self-reflection and self-criticism of our own administrative law arrangements. Joining in conversations with others can even have a desirable cathartic effect—realizing that we’re not alone in sensing distress and trying to meet the challenges it puts on us. For those who seem to reject the legitimacy of administrative law in America—what has been called “anti-administrativism”—engaging in more globalized administrative law conversations, which would expose that many other systems face similar conflicts or pressures and engaged in a familiar administrative law project, might even complicate if not entirely challenge these beliefs.
D. Costs and Risks: Administrative Comparison’s Misuse and Abuse
Comparative administrative law carries with it substantial promise in a world where its possibilities again seem real, and where administrative states (and constitutional democracies more broadly) are under pressure worldwide. But like almost everything else that’s good, it is not cost-free. Comparative administrative law might be seriously “misused.” And at this specific point in time, it might even be seriously “abused.”
Start with the fact that even with the best of intentions, grave comparative administrative law missteps can occur. After all, comparison demands that we learn about other systems that we likely don’t know enough about, don’t speak their language, or don’t fully understand their legal and political cultures. But that’s a REALLY difficult task, certainly when done individually and the broader and more globally encompassing one’s comparative aspirations end up being. Consequently, any inference that we would make based on comparative administrative law is at risk of being exposed as simply erroneous or problematically selective. That inference didn’t get the foreign law “right” or is based on a too thin pool of countries that can’t really be said to support it. Alternatively, in light of these challenges of doing comparative law, any inference that we would make based on it could be exposed as an instance of “shallow comparativism,” in which the comparator, even if they didn’t err or weren’t problematically selective, had inadvertently omitted variables in law, politics, and culture that make their inference utterly unreliable. In fact, given the more qualified process of convergence that had occurred with respect to administrative law, compared with constitutional law, there is reason to think that the risks of errors, selectivity, and shallow comparativism might be especially acute here.
For obvious reasons, the costs of errors, selectivity, and shallow administrative law comparison dramatically increase the more one seeks to draw on it for goals that transcend the mere reflective or analytical and venture into the more reformist and transformative goals of doing comparative law—whether in the institutions of law themselves or the overall administrative law culture. After all, if done erroneously or shallowly, comparative administrative law won’t likely suggest directions for useful reforms in present administrative law arrangements or for beneficial ways to push domestic culture. Rather, it could end up recommending something that doesn’t fit one’s domestic administrative state or law, won’t be understood there, or will create severe problems down the road. Similarly, the costs (as well as the likelihood) of errors, selectivity, and shallow administrative law comparativism further increase the more the use of comparison leaves legal academic circles and penetrates other domains, such as the judicial and governmental ones. After all, these environments are not normally characterized by the same academic disciplinary norms that reinforce important “quality controls” that can help guarantee robust contextual administrative law comparativism. Time constraints, specific goal orientation pressures, and politics begin to slip in more clearly and explicitly, increasing the chances that comparative recommendations may not be sufficiently robust, will cause blunders if pursued, or will reflect unattractive (or at least disputed) political agendas.
And to be clear, comparative law can certainly have a political agenda that is far from appealing. And comparative administrative law, of course, is not immune from that either. We have actually seen it already in Part I.B, in the discussion of how Albert Venn Dicey invoked comparative administrative law negatively to arguably stymie the development of the administrative state across the common law world when the modern field was struggling to be born. Only counter-administrative law comparativism that exposed Dicey’s suggestion that administrative law is impossible as shallow and politically motivated seemed to have helped with that. However, we can also see the potentially troubling politics of comparative administrative law from more recent examples. For instance, we’ve seen before that there is now a global trend for the introduction of APA-like statutes around the world. While some celebrate this as one of the valuable aspects of administrative law globalization, this trend’s impact may, in practice, be much more ambiguous. In some jurisdictions, like in Latin America, this move might have created unrealistic expectations of what administrative states can in fact deliver or achieve. It might have even diverted resources from places where they may be more urgently needed. In addition, the GAL movement, which, as previously discussed, argues that global administrative law norms already shape (or should shape) global institutions, has also been forcefully criticized for contributing to the undesirable elimination of national administrative law pluralism amongst systems in favor of a far from clear vision of administrative universality. The GAL movement was moreover criticized for its cherry-picking tendencies, focusing mostly on Western administrative law systems, as well as for its push for globally replicating administrative law norms that increase power and resource inequalities.
The costs and risks of administrative law comparison discussed so far (of being erroneous, shallow, selective, and its ability to draw on comparison in the service of unattractive, universalizing, and other political agendas) are general ones. But it should be noted that they may in fact be more expressed today. As we have seen, both in the U.S. and around the world, constitutional democracies and administrative states seem to be facing a current crisis. There are significant calls to make them much more responsive to the people themselves rather than to a thin layer of elites. Alternatively, there are calls to increase the efficacy of the administrative state to address policy issues of the day.
As argued before, that crisis can prove fruitful and potentially lead to desirable change. We need not assume the status quo ante was necessarily best or that the current crisis is “exogenous” to existing conditions. Doing comparative administrative law can be an important way to see that and capitalize on the crisis constructively.
Nonetheless, with the current environment of polarized politics and other trends that suggest growing support for an authoritarian style and program of politics, this crisis also highlights certain risks as well. The possibilities of reform afforded by the current moment can open the door not only for improvement, but also to eroding what we can think of as the “minimum core” of the administrative law project. On one hand, the desire to make democracies and administrative states more responsive to the people themselves can lead to moves that would eliminate the effective space for the kind of independent and hopefully expert judgment that is at the core of the administrative law project. On the other hand, the desire to increase the effectivity of the state apparatus (and perhaps to make it a tool for an increasingly transparent authoritarian project) can lead states to take steps that would create virtual black boxes or increase the reach of the so-called “deep state.” It would make administrative states effectively closed off from democratic and political contestation.
Comparative administrative law can potentially be recruited for exactly these kinds of “malicious” and “abusive” goals. By drawing on arrangements that exist elsewhere and which appear benign from afar but will affect these kinds of changes, comparative law can provide these moves with a façade of legitimacy that they would not otherwise have. In such cases, comparative administrative law transforms into a tool that proactively aids attempts to erode the “minimum core” of administrative law, not truly advance a constructive discussion about reasonable arrangements and improvements in various countries’ administrative laws that are protective of that indispensable core.
E. The Right Approach: Modesty and Experimentalism
Despite the costs, and without denying their seriousness, it would be wrong to say that these costs utterly condemn the practice of comparative administrative law. The benefits of engaging and reviving it are, as Sections II.B & II.C argued, likely substantial both in general and today. And it is simply far too quick to think that the risks of misuse and abuse can’t be handled in a manner that is subtler, and more sophisticated, than just backing away from doing it at all.
Of course, at the end of the day, there is no alternative to a considered contextual judgment about the virtues (and vices) of specific attempts at doing administrative law comparison. We can never escape judgment, and we especially can’t escape judgment in a discipline that is likely to stay in large part scholarly in nature. With that said, it does seem useful to at least try and identify the basic outlines of an approach to comparative administrative law that could potentially steer ongoing and future work in this vein in a promising direction. Such an approach could serve as a kind of convenient heuristic for the field to rely on, or coordinate around, as it hopefully continues to grow and comes together in the years ahead. Such an approach could moreover prevent at least the most egregious comparative administrative law missteps—or supply a common vocabulary to criticize it.
As the discussion up to this point already implicitly suggests, the approach I have in mind clearly rejects the extreme poles of universalism and particularism discussed in Section II.A. Taking my cue from many other scholars who are working in the field of comparative constitutional law, my view is also that we should take the middle road between these poles with respect to comparative administrative law. However, because of (1) what I take to be the real potential costs of shallowness, cherry-picking, excessive universalism and, at this time at least, abuse of comparative administrative law; (2) because the field of comparative administrative law, at least in America, is admittedly only at initial stages of being revived (after years of lying dormant); and (3) because the field of administrative law appeared to have gone through a more qualified process of globalization than constitutional law did (which makes comparative administrative law potentially more complex and challenging), the approach I endorse here is somewhat closer to the particularist pole. It emphasizes more of the so-called “ideology of difference.”
I will call the approach I have in mind a modest and experimentalist one. And under it, comparative administrative law should proceed from a position of caution. This means that in doing comparative administrative law both analysts and practitioners should be expected to be highly contextual. They cannot assume too readily similarities amongst systems, notwithstanding the globalization trend and the observed cross-national fluidity in divergences between administrative laws and states. Assuming something like this would clearly be shallow and thus impermissible. And it would be inappropriate given the real likelihood of errors and problematic selection effects, among other things. Instead, comparative administrative law calls on those who perform it to seriously work through the dimensions of potential difference between nation-states—whether they are in law, politics, culture, or any other relevant dimension—to identify how things that appear the same may not necessarily be so. This also means that comparative administrative law’s most natural and secure use, if not purely historical or genealogical, is mostly as a source of self-reflection and critique.
That said, a modest and experimentalist approach to comparative administrative law doesn’t completely shy away from making recommendations for useful reforms based on comparative law—influencing the institutions of administrative law directly or the overall legal culture in which those institutions (or the administrative state more broadly) are embedded. It is just that such an approach insists again on caution. More specifically, this approach insists that the following four conditions be met before any institutional reform or cultural move should be taken seriously:
First, that there would be good reasons to think that the cross-jurisdictional differences that help explain sources of difference may not be that substantial. That, in other words, when looked at context sufficiently, there is a basis for assuming some measure of substantial similarity, including because of processes of globalization and fluidity that already occurred in the administrative law space (or for any other reason).
Second, a modest and experimentalist approach insists that before any more reformist or transformative move is explicitly made or is taken seriously, the comparator would point out reasons, rooted in the particularities of the domestic system, that would support such a move. These reasons must of course pay attention to the overall domestic administrative law legal framework, whatever that may be. But they should go as much as is sensible and possible beyond that—again, to the general political, cultural, and institutional environment in which the administrative framework is embedded, too. To be clear, this is not to say that comparators cannot rely on more universalistic reasons or on the already occurring processes of administrative law fluidity and globalization discussed before. In a more global environment, which builds on cross-national cooperation, this may sometimes be desirable. However, a modest approach does insist that reliance on these elements would importantly be intermediated by a keen sense of understanding of the possibility of national administrative differences. It also insists that the values inherent in administrative law pluralism (and the risks of excessive or, at a minimum, too rapid universalism) would be recognized.
Third, a modest and experimentalist approach to comparative administrative law requires that drawing on foreign solutions as either inspiration for direct reforms or as a means of cultural transformation isn’t likely to be abusive and severely undermine the basic constitutional function, or the “minimum core,” of the administrative law project in the destination jurisdiction. This means, as the previous Section suggested, that the use of comparative law can’t bring about (or wouldn’t be highly likely to bring about) one of two possible results: It can’t, for one thing, cause a situation whereby the reception of the foreign institution or rule (even if adapted) would in effect deny the existence of an administrative state or some form of “supplementary bureaucratic law making in the ongoing regulatory enterprise.” Indeed, an overall system of law that does not account at all for the possibility of an administrative state is, under current conditions, “inadequate to contemporary law.” At the same time, the exportation of an administrative law solution from someplace else that would ultimately make the administrative state an effective “black box,” one that cannot be penetrated especially by democratic critique and voice, would be impermissible as well. It will create a true “deep state” that is similarly beyond any reasonable project of a democratic and liberal administrative law.
Finally, and even if a comparative analogy has crossed the threshold of sufficient contextualism, domestic justification, and non-abusiveness, a modest and experimentalist approach to administrative law comparison insists that drawing on the foreign solution as suggesting direct reforms or as a basis for a move to transform a given culture should be done experimentally. Of course, the invocation of administrative law comparison as a form of dispersing information and knowledge can, in itself, be an important technique for achieving reform and cultural transformation. And, certainly when the information circulated abides by the previous conditions of this modest approach to comparative administrative law, it is always fine.
But the experimentalism label does take a more concrete meaning when one draws on comparative law to cause more immediate change in legal institutions. More specifically, an experimentalist approach endorses one of two options. The first option is to draw on the foreign solution in administrative law only incrementally, in small steps. This means that those who seek to draw on foreign law should, for example, let it “percolate” for a while in domestic administrative law discourse before making any further concrete moves. Alternatively, if not wait for percolation, those who seek to draw on comparative administrative law should at least limit the scope or immediate implications of the reliance on the foreign solution until more experience is accumulated. Only then, if the experience is supportive and confirms the desirability of the initial comparative inspiration, further expansions can occur. The second experimentalist option, by contrast, permits to move quickly rather than gradually. It allows, in other words, to lean more forcefully on the foreign source and adopt it domestically, without the limitations of incrementalism. At the same time, however, this second option insists that it would be both possible and easy to quickly reverse and change course if that leap of faith is ultimately discovered, once facts and experience are gathered, to be ill-advised in hindsight.
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To be absolutely clear: this is not a panacea. Even under the modest and experimentalist approach I have outlined here, mistakes will be made, and reasonable disagreements about how precisely to apply that approach and what it yields in specific cases will surely surface. Nonetheless, at this stage of the development of the field, this approach does seem to provide a general outline or heuristic for productive and responsible comparative administrative law engagement. Guided by this modest and experimentalist attitude, the likelihood of reviving comparative administrative law and accruing its benefits (rather than its costs) seems much more secure.
III. ILLUSTRATIONS
Saying is often easier than doing. And so, this Part goes beyond the saying and into the “doing” of comparative administrative law. More concretely, this Part zooms-in on two doctrinal domains within our administrative law to illustrate the kinds of payoffs we can derive from reviving comparative administrative law (in general) and from the modest and experimentalist approach to performing it that Part II has defended (in particular).
It should go without saying the domains I will be focusing on here are not the only administrative law domains that would benefit from taking on a comparative lens. And in the discussion that will soon begin in earnest, I will only be able to draw on a relatively small selection of jurisdictions, such as the U.K., Canada, Italy, France, Israel, Germany, and the European Union. But given the present state of marginalization of the field of administrative law comparison, we must start somewhere. And my hope is that the doctrinal domains that I will be centering on here are sufficiently central, and the benefits from the comparative discussion are sufficiently meaningful, that these illustrations will help encourage in the future more work in comparative administrative law. That work, in turn, will hopefully expand our horizons even further and farther—both thematically and geographically.
Section III.A, immediately below, zeros-in first on the law regulating the use of non-legislative rules or, as they’re more widely known today, certainly in the U.S., guidance documents. Section III.B then takes on Chevron deference. It critiques Justice Gorsuch’s opinion in Buffington that invoked comparative administrative law to undermine Chevron, exposing its shallow, cherry-picky, and abusive nature. And it suggests how the Court’s future analysis, either in Loper Bright and Relentless or, more likely perhaps, well beyond, as well as the entire domestic administrative law community could usefully draw on comparative administrative law to both rectify Buffington’s failures in the short-term and more productively reflect on the future of Chevron deference in the longer term.
A. Domesticating Administrative Guidance
1. Some Background
Here’s a story everyone familiar with American administrative law can surely now recite. That story is about the American administrative state’s evolution. And it proceeds in two steps. In the first step, administrative agencies regulated in ways not so different from common law courts. That is, agencies drew on adjudications. Beginning in the 1960s and 1970s, however, things gradually changed. Agencies turned to regulate not as if they were courts and on an individual, case-by-case basis, but rather as if they were legislatures—that is, through the issuance of legislative rules. Most clearly, they used the process skeletally described in the APA for informal rulemaking or notice-and-comment rules. This process includes a publication of notice on a proposed rule, accepting comments from the wider public about the rule, and then publishing a final version of the rule that responds to the comments.
Today, rules are often described as the “core policymaking apparatus within the administrative state.” And they are celebrated as “one of the greatest inventions of modern government.” But this story has a very big hole in it. It’s incomplete at best. For in addition to legislative rules, another trend seems evident today: agencies’ turn not to legislative rules but to nonlegislative rules or, as they’re more widely known today, guidance documents.
Guidance is an extraordinarily diverse category. And it is both similar to and different from rules. Like rules, guidance is also general and prospective. The use of guidance is not going back to the pre-1960s and 1970s world of regulatory decision-making by adjudications. But unlike rules, guidance doesn’t have the full “force of law.” Its key characteristic, in other words, is its provisionality. Agencies can quickly issue guidance and change it because, as the APA says, guidance documents are exempt from the notice-and-comment process. Moreover, to formally enforce guidance, agencies cannot just rely on it as is. Rather, they would need to crystalize it in a separate “final” agency action, such as an enforcement decision.
Within our administrative state, guidance is “oceanic.” The number of guidance documents available now “dwarf[s] that of actual regulations by a factor of twenty, forty, or even two hundred.” In short, instead of a world of “rules, rules, rules” we may more accurately be living in a world of “guidance, guidance, guidance.” We have entered a potential third step in our administrative state’s evolution.
The use of guidance has clear advantages in the administrative state. It can serve an important function of “internal administrative law”—a tool by which agency principals can streamline, control, or guide inferiors to make sure that general agency policies are consistently enforced and that the overall level of decisional quality is adequate, for example. From the perspective of the public itself, guidance can serve important rule of law values, such as notice, or as a means for translating sometimes highly complicated technical documents to much simpler language (as an act of “official helpfulness,” so to speak). Most ambitiously, and most in line with the third-step evolutionary story, guidance can be seen as the optimal regulatory tool in today’s administrative state, far surpassing the attractiveness of rules. After all, in a world such as ours where empirical and normative uncertainty is vast and knowledge is dispersed, agencies that aim to move more tentatively and with a willingness to learn “on the go” from experience will quite naturally be drawn, and perhaps should more regularly be drawn, to regulation by guidance.
But guidance also carries with it genuine risks. Guidance, in other words, also calls for its “domestication.” For one thing, though guidance is supposed to be in some key sense provisional, there is a concern that in practice it won’t be so. That, in other words, it will act as though it has the full force of law, either because the agency itself will rigidly treat it that way or because regulated parties, and broader features of the regulatory environment and culture, will effectively make it so. If that’s the case, though, guidance will not only lose its justification as such; but it will also have the additional effect of circumventing the notice-and-comment process. As Justice Kagan once remarked, it would be an “end run around [it.]” A second risk that arises with respect to guidance is that, even if it is importantly provisional rather than excessively rigid as if it were firm law, administrative guidance will still clearly have important effects on behavior. Indeed, the whole point is that guidance would have such behavioral effects or otherwise it would not have its supposed advantages. But, if guidance has these effects, there is a substantial risk that the guidance would be legally defective or arbitrary in ways that would matter well before the agency finalizes its actions based on it (if it ever will). As a result, there is at least some persuasive case for controlling the risks of guidance in advance of its final enforcement.
As things now stand, our law has chosen one particular path to respond to the first concern triggered by guidance. More concretely, recognizing the potential for guidance to become rigid and rule-like, and an “end run” around notice-and-comment, lower courts have adopted the “practically binding” test to sort between valid and invalid guidance. Under this test, petitioners can bring a suit against agency guidance claiming that because it is “practically binding” it is, in fact, a rulemaking in disguise. And, if their claim is successful, courts will invalidate the guidance document and require it, because it is a rule, to go through the regular notice-and-comment procedure.
In stark contrast, our law has so far been much less responsive to the second concern. Though there is case law from the Supreme Court and lower courts that suggest a much more pragmatic approach to the requirements of “finality” (and ripeness) in administrative law, which would allow courts to review on a pre-enforcement basis at least some guidance documents for legal defects and arbitrariness even if they are not “practically binding,” the dial seems to have turned. A more formalistic or “legalistic” trend seems quite common, especially in the lower courts, which tends to deny the reviewability of guidance on a pre-enforcement basis just because it is guidance that lacks, definitionally, the force of law. As it now stands, the only secure way one can get guidance to the point of judicial review is by drawing on the “practically binding” test or by waiting up to the point of enforcement.
Not surprisingly, this situation has triggered calls for change. On one hand, some—mostly on the right of politics—emphasize the risks of abusing guidance as a form of “shadow regulation” and “arm-twisting” outside the constricts of notice-and-comment. They thus call on courts to hone in on guidance and more severely constrain its potential abuse, including by continuing its enforcement of the “practically binding” test (and even tightening it further), as well as to broaden the possibilities for pre-enforcement review of guidance’s potential illegality and arbitrariness. These calls also provide impetus for the political branches to take ambitious steps to limit the use of guidance documents.
On the other hand, others, mostly on the political left and center, have recently taken a dramatically different view. While they too recognize the potential risks of guidance, they also don’t believe that judicial review is the right way to go, so to speak, to immunize against the relevant risks. In their eyes, courts have done quite badly on this front. Litigation over the “practically binding” test has, it is believed, proven too erratic and confusing, and the courts’ approach too skeptical about the legitimate uses of guidance. The expansion of reviewability of guidance on legality and arbitrariness grounds at the pre-enforcement stage is also, for many of them, out of the question. To domesticate guidance, as this view suggests, we largely need to look outside of the courts and to bureaucratic, industry, and civil society practices (and incentives).
2. Enter . . . Comparative Law
What might comparative law teach us about this highly conflicted, even polarized, but hugely consequential area of our administrative law?
The use of comparative law should not be entirely surprising in this context. Indeed, the modern turn to guidance as a key, perhaps leading, regulatory tool in today’s administrative state is not a distinctively American phenomenon. It exists elsewhere, too. In spades. For example, France, Germany, and Italy also seem to have adopted, with increasing force and intensity, the use of administrative guidance as an “intermediate” solution between “discretionary and bound administration.” And guidance exists to a similar and growing extent in common law systems—including the U.K., Canada, and Australia, and perhaps most prominently now, in the European Union as well. These diverse legal jurisdictions, very much like us, also often seem to be “puzzle[d]” by guidance and its appropriate treatment given its complex status as provisional yet highly impactful law in today’s administrative state.
How might these jurisdictions’ choices about how guidance should be domesticated illuminate our own? To respond to this question, let me dig a little bit deeper here into one specific jurisdiction before returning to a broader geographical context. Focus for the moment on what James Landis called “our British cousin[]” from the “Anglo-American tradition” of administrative law: the U.K.
The U.K., like the U.S., has a hierarchy of norms. At the top stands primary legislation, which is passed by the two houses of the British parliament. Then, there is secondary legislation. Secondary legislation is formulated and passed by the executive after some form of parliamentary supervision is supplied, which can range from very minor (laying before parliament with no need for active approval) to more robust (requiring active approval by a parliamentary committee). The kind of supervision that applies to secondary legislation is prescribed in the U.K. in a statute—the Statutory Instruments Act. This Act also requires publication of secondary legislation. Finally, there is also the possibility of issuing guidance, though the term more familiar for it in the U.K. (and, for that matter, many other common law systems) is different and ranges from “quasi-legislation,” “soft law,” “policies,” “tertiary rules,” or sometimes—though it would have been absolutely confusing in the U.S. context—just “rules.” Occasionally, the issuance of guidance in the U.K. is prescribed in statutes themselves. But sometimes decisionmakers have claimed that the power to issue guidance is simply inherent.
In 1944, the increased use of guidance by the administration in the U.K. was described as “recent.” By 1986, however, U.K. scholars began detecting a “discernible . . . retreat from [formal regulation] in favour of government by informal rules.” Indeed, guidance is now a “fact of public life” in the U.K. The number, variety, complexity, and impact of guidance in the U.K. again dwarfs that of formal regulations. And, just as in the U.S., guidance in the U.K. also comes in a variety of forms, including codes of practice, circulars, directions, and rules, among other labels. The administrative state in the U.K. is likely well into its third step, just as we might be in America.
How did the law in the U.K. respond to this emergence and rise of guidance? As it happens, there has been quite a bit of change there.
The initial reaction to guidance and its “accretion” in the U.K. was quite negative. As one scholar described it, guidance’s “problems of legitimation” were much of what had been emphasized. Guidance generally faced a “cold climate” and was looked at with “positive suspicion.” The primary concern in the U.K. was not so far from our own concerns in America about guidance: that its increased use would essentially displace the reliance on proper primary or secondary legislation to direct behavior, thus circumventing Parliament or elected politicians more broadly. As one contemporary commentator in the U.K. captured the issue, memorably: guidance seems like no less than a “retreat from law.”
The manifestation of this initial negativity toward guidance in the U.K. wasn’t, as we might have expected from our own experience with the APA, the Statutory Instruments Act. As it happens, courts in the U.K. have taken a rather simpleminded approach early on to the classification of what is to be considered secondary legislation and thus subject to the parliamentary scrutiny and publication requirements of the Act, and what is not. That simplistic approach simply looked at how the executive itself defines its legal actions. Only those actions that were explicitly recognized by the executive as statutory instruments would be subject to the Act.
With this path blocked, the initial positive suspicion toward guidance found its way into law in the U.K. through a different route, more deeply within the common law tradition. That route was the so-called “no-fettering” principle that courts in the U.K. innovatively embraced. This principle established in administrative law across the U.K. a relatively strong presumption that discretion must be retained in areas where legislation or secondary legislation allow for it. Discretion, in other words, can’t presumptively be “fettered” by the issuance of guidance. Such fettering could only occur through hard law—that is, through primary or secondary legislation.
And, indeed, courts in the U.K. at first implemented this suspicious presumption toward guidance quite forcefully and ambitiously. It was not uncommon, for example, to find a court invalidating guidance as such based the “no-fettering principle,” seeing it as per se illegal. Alternatively, courts in the U.K. would occasionally deprive guidance of any real content. They did so by insisting, invoking the “non-fettering principle,” that decisionmakers could use guidance as at most one relevant consideration in their decisions. Alternatively, invoking the “no-fettering principle” once again, courts in the U.K. required agencies to conduct an individualized, full-blown hearing in each and every case where a decisionmaker was seeking to apply prior guidance.
As should be clear, this was a highly restrictive approach. It basically emptied guidance from much of what makes it attractive as a tool of internal administrative law or as a platform for building experimentalist regulation, for example. In many ways, the approach in the U.K. during this initial stage seems even stricter than the practice by which courts invalidate guidance today in America for being “practically binding.”
But then the approach in the U.K. to domesticating guidance dramatically changed. In an important case called British Oxygen, the House of Lords—then the U.K.’s apex court—ushered in a new era with respect to the domestication of guidance. British Oxygen disavowed the previous approach that viewed guidance as either entirely illegal or something that can at most be used as one consideration among many as a condition for its validity (or if it is subject to individualized hearings). Instead, British Oxygen created, in effect, what seems like a reverse presumption: that guidance is legal so long as there are conditions that allow decisionmakers to “listen[] to any applicant who has something new to say.” In other words, all decisionmakers need to do to make guidance presumptively legal is to show that there are paths for at least considering the need for exceptions.
With the House of Lords’ judgement in British Oxygen, the judicial barriers in English law to the use of guidance have been significantly lifted. Guidance could be freely issued, and even given a substantial role in administrative decision-making, without immediate fear of judicial hostility. Since British Oxygen, guidance has been clearly seen as part of “good administration.” In a separate line of cases, U.K. courts have even clarified that issuance of guidance doesn’t require explicit statutory authorization; such authorization is indeed almost always implied in governing statutes.
All that didn’t mean, though, that courts in the U.K. have entirely retreated from the fray of domesticating guidance. The “no-fettering principle” and its potential to erect difficulties to guidance did not die with British Oxygen. Rather, the principle has now been transformed. Instead of acting as a strong presumption against its use—making any guidance that seems to bind discretion outside of the process of primary or secondary legislation immediately suspect—the no-fettering principle has become a way for judges to review, in concrete cases, whether the degree of fettering (or bindingness) expressed by guidance is a permissible one in the circumstances at hand—a true incident of “good administration” rather than abuse.
As one prominent commentator reports, in applying this newly transformed and highly flexible version of the “no-fettering principle,” courts in the U.K. largely tend to look at the “substantive nature of the decision to be made” as well as the overall “administrative context.” And unsurprisingly, the results in various cases therefore tend to highly diverge. In some cases, such as those that involve high-volume adjudication or when there’s a strong need for controlling large and dispersed lower-level decisionmakers, courts in the U.K. have acknowledged the legitimacy of a high degree of fettering of discretion via guidance—with very little need for exception and individuation. Indeed, in these circumstances, even “blanket policies” were ruled as legally permissible. In fact, in an astonishing reversal from the initial approach to the “no fettering principle,” in some cases courts in the U.K. have even suggested that the issuance of guidance might be mandatory; that strong fettering would be required as a matter of law. The “no-fettering principle,” in other words, has sometimes been transformed in the U.K. into what two leading scholars have dubbed a positive “fettering rule.”
By contrast, in issues in which fragile interests seem to be at stake, courts in the U.K. have ruled that a high level of individuation rather than fettering would indeed be required. Alternatively, they have ruled that decisionmakers need to do more to make sure that they remain open-minded and able to make either exceptions or total revisions to policies inscribed in guidance (including by actively encouraging applications for revisions).
In short, administrative law in the U.K. has seen a crucial transition with respect to the meaning and application of the “no-fettering principle” as a restraint on the use of administrative guidance. From a rigid administrative law ground that invalidated such guidance whenever it “fetters” (or binds) discretion in any meaningful sense, the no-fettering has transformed into a much gentler tool, one that evaluates the reasonableness of the degree of fettering expressed in the guidance and the administrative regime it builds in particular contexts.
But this still leaves another important question yet unresolved: At what point in time would this judicial review of guidance under the transformed “no-fettering principle” in the U.K. be allowed? And what about other potential defects in guidance documents, such as illegality or arbitrariness? Could courts in the U.K. review them on a pre-enforcement basis? Or would these issues have to wait until the guidance is actually applied in a more formalized, final legal action? As we have seen, this is another crucial issue for guidance domestication, one on which U.S. law has recently given a very particular legalistic/formalistic response: for pre-enforcement review, pretty clearly no.
As it happens, here, too, there has been a significant evolution in U.K. administrative law. At first, the idea of facial reviewability of guidance prior to its application in individual circumstances was anathema in the U.K., at least on grounds other than the previously discussed “no-fettering principle.” Indeed, initially, courts were wedded to the idea that review (or “jurisdiction,” as it is sometimes called in the U.K.) is crucially reliant on whether the action creates legal rights and obligations. Guidance, law in the U.K. implied, was not perceived as creating such. Review of guidance, at least when it is not impermissibly fettering, would thus be too abstract. As one senior commentator put it, allowing such pre-enforcement, abstract review would cause judicial review to “burst through its logical boundaries.”
Yet in an important case called Gillick, fifteen years after British Oxygen, the House of Lords again dramatically changed tack. In Gillick, the House of Lords clarified that even though allowing review of guidance on a pre-enforcement basis is a “significant extension of the court’s power of judicial review,” there are circumstances where it would and should be allowed. After all, the regime initiated by British Oxygen with the “no-fettering principle” now recognizes the possibility that guidance can have significant effects even if it is more provisional than hard law. As a result, extending judicial review was a natural progression.
After Gillick, then, courts in the U.K. became much more “proactive” than they previously were. Judicial review has exactly burst through its previous logical bounds (showing, perhaps, yet again, that the life of the law isn’t really “logic”). However, the precise circumstances where courts in the U.K. would allow review of guidance on this pre-enforcement basis remained somewhat unclear after the House of Lords’ judgment. Acknowledging that its move was exceptional and fraught, Gillick spoke about the need for caution and to allow review on that basis in limited cases. For example, Gillick limited that form of review to clear errors of law. It also spoke about the need for courts to disallow this review when issues of morality are at stake (as they were in Gillick). Today, however, scholars in the U.K. seem to agree that this restrictive approach has given way. As one commentator has observed, review of guidance on this pre-enforcement basis post-Gillick is now “regularly” granted. And it is granted for what appears like a variety of claims, including the illegality of the guidance (for example, whether it correlates with any statutory dictates), its correlation with the “no-fettering principle” (flexibly applied as discussed before), and, finally, the substantive reasonableness of the guidance—which is the U.K.’s equivalent to our own somewhat unique arbitrariness review under the APA.
To be sure, this generosity with respect to pre-enforcement review of guidance under administrative law in the U.K. is not assured. Courts in the U.K. occasionally do flex their muscles. But as things stand today, it seems safe to say that pre-enforcement review would most likely be granted at least if courts view the underlying issue as possessing “sufficient public importance.” So, for example, in a case called Royal College of Nursing (“RCN”), which Gillick heavily relied on, the House of Lords emphasized the reality that the content of the guidance is going to affect “several thousand[]” procedures and is likely to be adhered to by the public as a reason for allowing pre-enforcement review. In both Gillick and RCN, the House of Lords also emphasized the prospect of future sanctions from not following guidance, especially of the criminal variety, as support for its pre-enforcement reviewability. And finally, in a recent judgment, the U.K. Supreme Court (which replaced the House of Lords as the country’s apex court) ruled that review of administrative guidance would be granted if it “imposes requirements which mean that it can be seen at the outset that a material and identifiable number of cases will be dealt with in an unlawful way.”
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Admittedly, this is a somewhat flat survey of extant law in the U.K. with respect to guidance domestication. But it should nonetheless prove provocative for present purposes. What it demonstrates is that the U.K. has landed on an approach to the domestication of guidance that seems importantly different than the American approach. First, courts in the U.K. no longer view guidance that binds as presumptively suspicious as U.S. law does. Indeed, they don’t fuss as we do about whether guidance is ‘“practically binding’” or not as a condition for its procedural validity and as a kind of surrogate safeguard for the potential abuse of the legislative or rulemaking process. Rather, courts in the U.K. easily recognize that guidance can permissibly fetter and indeed bind so long as it leaves genuine room for exceptions. Second, American and U.K. courts take a different approach to the timing of judicial review of guidance as well as to its substance. In the U.S., the approach today tends to be quite formalistic and legalistic. Guidance that is not “practically binding” will likely be reviewed only at the point when it is crystallized in a separate “final” and formal agency action. By contrast, in the U.K., the approach is much more consistently pragmatic and expansive. Courts in the U.K. do submit guidance that is sufficiently important (for example, because of its substantial practical effects or because of high likelihood for abuse) to review on a pre-enforcement basis notwithstanding that it lacks the force of law. And at that stage, courts in the U.K. also inquire not only into the sensibility and reasonableness of the degree of fettering (bindingness) in the particular guidance at hand but also into whether it suffers from any major illegality or arbitrariness defects.
3. Lessons, Take I: Explaining and Justifying Differences
What can this comparison tell us?
As I have already argued, a sensible comparative approach to administrative law is a modest and experimentalist one. As such, it must always begin from a position of caution. That position recognizes that, despite increased globalization and cross-national administrative law fluidity, there remain differences that counsel against suggesting immediate similarity or against pointing too quickly in the way of administrative law reform based on comparative administrative law.
And indeed, it is not hard to think, certainly at surface level, of important differences between the U.S. and the U.K. These differences can explain the variance in our approaches to the domestication of guidance. Perhaps they can help justify it, too.
(a) The APA and general principles of administrative legitimacy: To begin, the current approach to guidance domestication in our system strongly relies on the APA. But, notwithstanding the general global trend, discussed above, of introducing administrative framework statutes (worldwide APAs), the U.K. still doesn’t have an APA-like statute. The Statutory Instruments Act is not a good analogy here. While it requires publication and parliamentary scrutiny of secondary legislation, it doesn’t require notice and, more importantly, a duty to receive and respond to comments from the public. In fact, the idea of general and broad public involvement in formulating general policies is traditionally viewed with deep skepticism in the U.K. Indeed, the animating legitimating principle of the administrative state in the U.K. is more traditionally political, relying on the normal representative democratic process, and particularly the accountability of the government and regulatory departments to parliament. The U.K. hasn’t traditionally centered on values that America today makes key as legitimating forces of its administrative state such as public deliberation or a desire to make the administrative process pluralistic and a surrogate for the democratic process writ large. This means that the values that would be fulfilled by the present American approach to domesticating guidance, which procedurally invalidates any guidance that “practically binds” to insist on a quasi-legislative and publicly open process, would not be the same in the U.K.
(b) Statutes v. common law: Furthermore, the Statutory Instruments Act also doesn’t have an APA equivalent that addresses judicial review and that explicitly speaks of a requirement of finality. Rather, the changes in the jurisdictional boundaries of courts in the U.K., brought about by the House of Lords’ judgment in Gillick which, as we’ve seen, blessed pre-enforcement judicial review of guidance, occurred based on a “pure” common law background. This, it might be thought, could be an important explanation for the variance in legal regimes as between the U.K. and the U.S. It makes the change that occurred in the U.K. to expand judicial review of guidance to the pre-enforcement stage potentially more legitimate or permissible compared to our system. Indeed, contrary to the United Kingdom, the U.S. currently seems more wedded to the need to abide by (or take very seriously) statutory law (as indicated by discussions expressing aversion to “administrative common law”).
(c) Constitutional structure: The fact that the U.K. is a parliamentary system, not a presidential one, seems important here too. The British government used to possess relatively tight control of Parliament. This, coupled with the fact that the procedure for issuance of secondary legislation is regularly much more lenient than notice-and-comment (which is sometimes described as “ossif[ying]” the regulatory process), could mean that the incentives to abuse guidance to circumvent the normal legislative route are much weaker in the U.K. than they are in the U.S. As a result, a stricter approach to the domestication of guidance doesn’t seem to be similarly needed in the U.K. as it may be in America.
(d) Culture and politics: Cultural and political elements, broadly understood, may be relevant as well. As is sometimes noted, the U.K. didn’t seem to exhibit the same cultural aversion to bureaucracy as we exhibit in the U.S. This is perhaps in large part because of the greater political control that politics may have over the bureaucracy. Given its parliamentary and constitutional structure, most agencies in the U.K. are directly accountable to ministers who are themselves members of the legislature. The famous so-called “independent” agencies that we see more often in the U.S. don’t exist to the same degree in the U.K. But this cultural and political divergence can also be the result of the higher standing of the civil service in the U.K. or because of, yet again, generally more favorable attitudes toward regulation in British society than back home in the U.S.
(e) Judicial role and the costs of judicial review: A final important difference between the U.K. and the U.S. in this context is about the courts. The approach in the U.K. to the domestication of guidance, as we’ve seen, gives judges quite a bit of discretion to police guidance on a case-by-case basis. Assuming guidance leaves room for exceptions, courts can rule on the question of the appropriate level of structuring (fettering) of administrative discretion in the guidance and how much it can be rigid or flexible. They can also review guidance for adherence to requirements of illegality and non-arbitrariness. And, crucially, they can do all that not just when the guidance is actually applied but also on a pre-enforcement basis. But giving American courts such a task could be seen as deeply perverse and contrary to conceptions of the appropriate judicial role. On this view, courts have no business in our system in policing the optimal level of constraint in guidance documents. All they can do is safeguard, definitionally, that the line isn’t crossed from nonbinding guidance to binding rule, which is precisely what the “practically binding” test aims to do. And American courts also can’t review “abstract” motions. That would substantially exceed the adversarial nature of our system, sometimes associated also with Article III of the Constitution, and would detach courts too much from the grounding in actual controversies.
But even if the U.K.’s regime for guidance domestication isn’t so contrary to perceptions about proper judicial role in the U.S., this is still not the end. There may be instrumental and institutional reasons to think that the regime in the U.K. won’t work positively here. Maybe judges in the U.S. will simply make more mistakes than judges in the U.K. in applying such body of law, for example, by failing to identify the optimal amount of bindingness that would be permitted in specific guidance documents. The famous Vermont Yankee decision is an indication that at least the Supreme Court believes that this sort of enterprise in which courts would decide independently which procedures are appropriate for agencies to use beyond the skeletal requirements of the APA is unjustifiably costly. And maybe the litigious nature of the U.S. system (its commitment, as we’ve seen, to “adversarial legalism”), the complexity of a federal and substantially larger system such as ours (with many different levels of courts and which controls a much larger population and consequential regulatory activity), and the more expressed judicial hostility toward the administrative state in America (anti-administrativism), will make the costs of such a flexible guidance domestication regime seen in the U.K. simply too high for us at home.
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All this certainly seems plausible on its face. But note just how much we have potentially gained from this comparative exercise. With this comparison in mind, we can now see that the regime of guidance domestication that we have, with its reliance on a ‘“practically binding’” test and a rather legalistic aversion nowadays from pre-enforcement review of guidance, could be understood to reflect the kinds of differences we’ve seen with the U.K., and which make our circumstances potentially unique. This includes (1) our need to defend the kind of values that animate the APA of notice and public participation in administrative policymaking; (2) the existence in our system of a statutory APA that is not only central but also provides what appears perhaps like meaningful statutory instructions for courts; (3) the stronger incentives that may exist in the American presidential system to circumvent the possibly “ossified” rulemaking process through the use of guidance; (4) the desire to give some expression in administrative law to views reflecting at least some skepticism toward free-wheeling bureaucratic discretion (and a general uneasiness about the administrative state more broadly); and, finally, (5) the existing regime may be explained and justified because it makes sure that the judiciary retains its appropriate role in our particular system of governance (or that the law the judiciary is empowered to implement doesn’t make the overall scheme of administrative law in America overly costly).
Looking at domestic sources alone might have given us clues in this direction for explaining and justifying our regime of guidance domestication in similar terms. But comparative law certainly makes them much more conspicuous.
4. Lessons, Take II: Critique and Reform?
Once all that is said and done, though, it still seems possible to consider how many of the differences just highlighted between the United Kingdom and the United States may be less powerful than they initially appear. After all, a modest and experimentalist approach to administrative law comparison doesn’t mean that we must rigidly assume that all administrative systems are inescapably different. That would be false in a world where, as we’ve seen in Part II.B, administrative law is experiencing some apparent fluidity and globalization. What a modest and experimentalist approach requires is only that we be careful and appropriately contextual before we make any judgment about similarity notwithstanding this more global and fluid background.
And indeed, holding onto this careful message and working contextually, the idea that we should simply look at the comparison with the U.K.’s approach to guidance domestication to say “thanks, but no thanks”—or to justify the present differences between us and them—could certainly be complicated. There is more similarity than the previous description suggests. The general fluidity and globalization of administrative law are felt in this context too.
(a) General principles of administrative legitimacy—redux: Start with the domestic perspective of the U.K. While it is true that the U.K.’s regime of secondary legislation doesn’t involve anything like the notice-and-comment process, it is still illuminating that the U.K. hasn’t opted for retaining a stronger “no-fettering principle” that would have directed more guidance to the path of primary or secondary legislation in the event that the guidance is “practically binding” (or “fettering”). After all, such a move would have been in line with the animating principle of parliamentary sovereignty that provides, so it seems, much of the legitimacy to the administrative state in the U.K.
(b) Statutes v. common law—redux: The idea that the form of pre-enforcement review of guidance documents courts in the U.K. now perform is easier to digest, so to speak, compared to the U.S.’s form of pre-enforcement review because here we have a statutory “finality” requirement also seems highly questionable. The opening up of judicial jurisdiction in Gillick to review guidance on a pre-enforcement basis was a dramatic move for the courts in the U.K. The perception of review of this kind substantially expanded on the traditional view of what it means to have judicial review in U.K. administrative law. Following it, as we’ve seen, caused judicial review to “burst through its logical boundaries.” A requirement of finality, in other words, was similarly deeply entrenched in the U.K. even if it did not manifest in the form of statutory law as it does in America.
(c) Constitutional structure—redux: Moreover, and as suggested already in Part II in a more global context, the U.K.’s parliamentary nature is much more ambiguous in its implications than might be initially thought. Parties in the U.K. appear weaker than in the past, a phenomenon that partly manifests itself by the increasing power of U.K. backbenchers as well as by the increase in the number of parties that get seats in the British parliament today. The primary and secondary legislative process in the U.K., too, is to some degree polarized and virulent—not that different at times from the “blood sport” description we see with respect to rulemaking in the U.S. The incentives to use guidance at the expense of primary or secondary legislation may thus not be that weak even in the U.K. As we saw, in the U.K. guidance too has been characterized as a “retreat from law.”
(d) Politics and culture—redux: As furthermore suggested in Part II, there is reason as well to question at least the degree or intensity of any relevant cultural and political gaps between administrative cultures across countries in general, including the U.K. and America in particular. Indeed, the “Anglo-American tradition” seems closer here too. While a deeply libertarian, Tea Party, “anti-administrativist” culture is perhaps absent in the U.K., or is at least less politically salient, there is certainly a tradition, perhaps growing, of suspicion toward bureaucracy in the U.K. Dicey’s declaration, mentioned before, that the U.K. doesn’t have administrative law still haunts the country. The British state and administration are still treated in some, perhaps growing, quarters with ambivalence.And U.K. administrative law scholars have famously highlighted the existence, sometimes prevalence, of what they call “red light,” rather than “green light,” approaches to administrative law. These approaches aim to mostly constrain the administrative state—not empower it. They’re akin to a “libertarian administrative law” U.K.-style.
Finally, the sympathy to retaining unbounded bureaucratic discretion and preferring regulatory informality is also probably no longer as strong as it used to be in the contemporary U.K. Administrative culture in the U.K. has been to a large extent “rulified” and legalized, as many have remarked, and as the previously described evolution of the no-fettering rule in fact further suggests (given the way that the no-fettering principle has sometimes been transformed in practice to a “fettering rule” whereby courts can make the issuance of guidance mandatory).
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All this indicates then that it is far from obvious to say that the U.K. didn’t have similar reasons to land on the kind of regime that we have in America, one that requires any “practically binding” guidance to go through the primary or at least secondary legislative process and that would deny judicial review at the pre-enforcement stage. It could have possibly gone that way. Yet, it didn’t.
To be sure, things in the U.K. are far from static. There are currently rumblings in the direction of some reform of the U.K. apparatus concerning administrative guidance. The use of guidance in the U.K. during the COVID-19 pandemic has created pushback and concerns over abuse, including that the present state of the law is too permissive and allows “government by decree.” This connects to a more general sense in the U.K. today, clearly evident in elite discourse, that there are good reasons to tighten parliamentary sovereignty over the British executive and administrative state, which includes strengthening legislative supervision of guidance. Finally, the U.K. has recently also seen cycles of critics pointing to the need to cabin an alleged over-aggressiveness by the courts, both in general but also especially in administrative law.
Nonetheless, at least so far, these contemporary rumblings haven’t resulted in a call for the kind of solution for the domestication of guidance that we see in the U.S. Indeed, there is no dominant voice today in the U.K. debates that suggests that courts will go back to invalidate any guidance that is “fettering” or “practically binding”; backtrack from policing the no-fettering principle in a highly flexible and contextual way; or entirely close the courts’ doors on pre-enforcement review of guidance for illegality and arbitrariness. Rather, at most, reflecting the kind of fluidity and potential globalization of administrative law we’ve seen in Section II.B, these calls have so far been trying to build on some elements of the regime of guidance domestication that is familiar from the U.S., though in a much subtler way.
For instance, one proposal has been to establish legal requirements to publication of guidance that would “compensate” for the lack of direct applicability of the Statutory Instruments Act. In the U.S., this of course exists already by virtue of the APA. But in the U.K., given the current legislative framework, that work has mostly been done through development of new judicial requirements, which legal scholars seem to generally be supportive of and even proactively encourage.
More interestingly perhaps, another proposal that has been floating around in the U.K. as a solution to the tensions and risks that have arisen lately with respect to the use of guidance is to enforce, in that context, some requirement for broad public participation or, as it is more commonly referred to there, “consultation.” The belief seems to be that, especially given the lack of any parliamentary supervision on guidance, consultation can be an important surrogate that would counter the risks of its abuse and enhance guidance’s legitimacy. And the belief seems moreover to be that the U.K. system, too, would benefit from expanding the repertoire of legitimating moves it uses with respect to its administrative state in ways that go beyond mere political and legislative accountability to more of the deliberative and quasi-democratic legitimizing principles and move broadly familiar in the U.S. context.
To be clear: This call to increase public “consultations” in the U.K. isn’t being made with respect to every administrative guidance. And the form of consultation being envisioned as a remedy for guidance’s risks and costs, and as part of a renewed effort to think about its domestication, doesn’t necessarily or always look exactly like the American notice-and-comment process. But when the issue centers on guidance that is sufficiently important, and when the agency itself hasn’t already made a real effort to engage broader audiences, then perhaps yes. And though most of the U.K. discourse has so far been centered on politics—in the sense that it is claimed that increase in the use of “consultations” in developing guidance should come from either the legislature or the government rather than courts (and it should be noted that at least the U.K. government has, in fact, taken some steps in that direction)—this is not the final word yet. Though courts in the U.K., including its Supreme Court, have so far been resistant to infer duties of broad public consultation on guidance independently, some judges and scholars did emphatically gesture in the direction of having courts recognize judicial obligation for consultation. It is quite possible therefore that in the future, and even without further concrete steps from either Parliament or the government, U.K. courts will decide to leap ahead.
5. Expanding the Comparative Gaze: Domesticating Guidance Across the Globe
Up to this point I have spoken about where the U.K. seems to be with respect to administrative guidance. But before going back to the U.S. armed with that knowledge, it is worth pointing out at this stage the fact that the U.K.’s previously existing and presently evolving regime of guidance domestication, which is edging somewhat closer to what we are familiar with in the U.S., doesn’t live in global isolation. To the contrary: if we broaden our comparative gaze, we find a lot that looks very much the same. The fluidity and globalization of administrative laws and systems is broader in reach.
For example, in Italy, the law on guidance (also known as circolari administrative) has long maintained that it is unreviewable on a pre-enforcement basis because it lacks any legal effects. However, courts there have noted recently an important exception, ruling that guidance will be reviewable so long as it is not purely “internal” and also addresses regulated entities themselves. In these cases, Italian courts will then opine on either the legality or substantive reasonableness of the guidance, as well as on whether the guidance is sufficiently provisional or rather too rigid.
France, too, has evolved in very similar directions. It has moved from completely prohibiting judicial review of guidance (known as “circulaires” or “droit souple”) because they lack any formal legal force, to its very minimal review, to slightly wider, to now allowing pre-enforcement review on various administrative law grounds so long as guidance has “significant effects” or will “significantly influence” the behavior of regulated entities and administrators. A similar situation now also occurs at the EU level, where, in contrast to the past, guidance can now be reviewed on a pre-enforcement basis and for a variety of causes so long as the guidance is capable of “affecting the interests of” a person or is “bringing about a distinct change in . . . [a person’s] position.” Finally, in Canada, courts have similarly opened the door for pre-enforcement reviewability of guidance in a wide variety of cases. They too are no longer troubled by their definitional informality.
But there’s actually more here. All these countries and jurisdictions (France, Italy, the EU, and Canada) are not only getting closer to the U.K. in allowing for pre-enforcement review of guidance in sufficiently important contexts. Like the U.K. again, all these countries and jurisdictions also exhibit similar discussions about the need to supplement pre-enforcement judicial review with “consultation” mandates—opening up guidance for public input. In most jurisdictions, such public consultations, it is believed, should originate from political institutions such as legislatures and executives or administrative agencies themselves. But, as in the U.K., the possibility of developing obligations to consult with the public judicially, rather than merely politically, is not at all foreclosed.
6. Back to Critiquing and Reforming the U.S.
As should be clear, there are important differences between the U.K., the U.S., and these other systems or jurisdictions that I have just mentioned. The EU is a supranational entity, and France is a semi-presidential system, for example. The regimes for guidance domestication in each of these systems are moreover not precisely the same, as the various tests used in these systems to allow for the reviewability of guidance briefly summarized above also indicate. And I of course did not even mention many other systems or countries whose administrative law and regime for guidance domestication may be entirely different. To the extent that the increased similarity between these countries or jurisdictions is itself an indication of the increased globalization of administrative law, it thus highlights yet again how that process is potentially fragile and obviously complex.
Nonetheless, after exploring more in depth the U.K. administrative law system and its specific approach to guidance domestication, and supported by this very minimal introduction—a sketch really—of foreign guidance domestication regimes beyond the U.K. (which seem to point in quite similar directions), we do seem to be on a more secure footing at this point to go back home, to the U.S., and start asking: are the kinds of differences highlighted before that significant also from our own perspective in the U.S.? Can they truly explain the divergence in the approaches to guidance domestication between the U.K. and these other jurisdictions and the American approach? Can they justify them?
And, as I think is fair to say, the answer at a minimum seems much less certain.
(a) The APA and general principles of administrative legitimacy—redux (II): We’ve seen, for example, that the APA and its animating values of public participation in policymaking by agencies can potentially support the present approach to guidance domestication in America. But the APA also clearly says that guidance is exempt from notice-and-comment rulemaking, thereby signaling that the participatory values the APA reflects—and which our broader culture emphasizes—are potentially much more qualified. They must be considered not in isolation, but along with the existence of contrasting values like the previously existing political accountability of agencies to the political branches, which, as discussed, is exactly what can explain the more lenient approach in the U.K. to guidance domestication. The move that we have seen in the U.K. and in other systems to encourage “consultation” with respect to guidance also suggests that the participatory values that our system prizes need not necessarily come from judicial enforcement of notice-and-comment procedures. They can come from other avenues, such as the political branches themselves or perhaps even through agency “self-regulation.”
(b) Statutes v. common law—redux (II): We’ve also seen that the present divergence in approaches may be dependent on the statutory requirement that exists in America with respect to finality. But the reality is that the APA’s “finality” provision doesn’t have an essentially restrictive meaning. As previously pointed out, in the past, courts did appear to take a much more pragmatic approach to the finality (and ripeness) requirements. That more pragmatic approach could have squared with pre-enforcement review of at least some key guidance documents notwithstanding that they lack the force of law just as we see in the U.K. and across other jurisdictions. This certainly puts under tension the suggestion that pre-enforcement review of guidance is in some deep tension with the judicial role in the U.S. A Gillick moment can potentially occur (or reoccur) even in the U.S. and with the kind of statutory APA that we have and that the U.K. lacks.
(c) Constitutional structure—redux (II): We’ve seen that the stricter approach that we have in the U.S. to domesticating guidance could have been furthermore explained by the potentially increased incentives to bypass the legislative and rulemaking processes, which seem harder to succeed at compared to primary and secondary legislation in the U.K. parliamentary system. But even that’s not crystal clear. Some suggest that the “ossification” thesis with respect to the rulemaking process in the U.S. is far from persuasive. And, as we’ve seen, administrative agencies may potentially possess sufficient incentives to, again, “self-regulate” and act prudently notwithstanding the temptations of guidance compared to rules. Letting agencies more freely issue guidance that is “practically binding” does not so obviously open-up opportunities for inevitable abuse.
(d) Politics and culture—redux (II): Even the cultural and political divergences that might have been thought to explain and justify the existing variance between the U.K. and the U.S.’s approach to guidance domestication does not hold so clearly. We have seen this before with respect to the U.K.’s more complex disposition today about the administrative state. But the same is true in the U.S. as well. A culture of fear of bureaucracy or the administrative state probably exists, and is certainly vocal, but there is also a counter-American culture nowadays that’s supportive of bureaucracy and is comfortable in relaxing some of the restraints it faces today in the name of achieving governmental arrangements that get things done. That counter-culture can also support the conclusion that there is no need for the strict approach of invalidating guidance whenever it “practically binds” and that it is fine to let bureaucracies experiment with legitimate uses of guidance that have various degrees of effects on behavior.
(e) Judicial role and the costs of judicial review—redux (II): Finally, the judicial challenges in managing a regime of guidance domestication that’s more flexible and discretionary, and which permits courts to perform review on a pre-enforcement basis, as in the U.K., is not necessarily prohibitive in the U.S. I have already mentioned how pre-enforcement review of guidance documents could have been squared with the more pragmatic conception of the judicial role that underlined past case law. But it is not at all clear that the costs of the U.K. regime for domesticating guidance would necessarily be so negative even in the U.S., either today or in the future. Though the U.S. administrative state’s environment is highly litigious and comparatively broad and complex, the idea that judges in the U.S. necessarily can’t flexibly and responsibly intervene or at least provide some input into the soundness of a guidance regime on all its components, as U.K. judges do, also seems unnecessarily extreme. It ignores more pragmatic trends in our jurisprudence and history of administrative law, which suggests that judges can potentially make responsible, sufficiently grounded, decisions in administrative law that are not entirely hostile to it.
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And . . . it is at this point that we must return to the kind of path that a modest and experimentalist approach to comparative administrative law charts. Now that we’ve seen, in a much more refined and contextual fashion, that the differences between the U.K. and the U.S. with respect to guidance domestication may not be so extreme, and that there is some substantial basis for potential cross-national similarity or at least fluidity, even a modest and experimentalist approach can license us to be a bit bolder. We might at least consider some change, or moving in the direction of change, based on the comparison. More specifically, we may consider such a move so long that it passes the further benchmarks that a modest and experimentalist approach recommends, and previously discussed in Section II.E, namely—that there are strong domestic reasons that support it, that the direction of change isn’t abusive, and that the change is pursued experimentally. And, indeed, these benchmarks all seem to be met or at least could plausibly be met.
Domestic justification: To begin, our contemporary approach to guidance domestication does seem to be highly unsatisfactory. The “practically binding” effects test has led to a confused jurisprudence and endless and potentially highly costly litigation. It has also created perverse incentives whereby both agencies and regulated parties are motivated to either strategically deny the real binding effects of guidance (the agency’s perspective) or exaggerate them (the private sector’s perspective). In the meantime, the unwillingness of courts to engage in pre-enforcement review for any guidance that survives the “practically binding” effects test, notwithstanding how much we know that guidance can lead to real world effects, creates a real potential for abuse of both regulated parties and regulatory beneficiaries.
The U.K. approach seems on its face better on all fronts. By adopting a reverse presumption to that the U.S. has today (according to which guidance is always procedurally valid, even if it binds, so long as it leaves genuine room for exceptions), the U.K. approach greatly simplifies the U.S. approach. It will allow U.S. law to capture the real advantages of guidance in the modern administrative state, including as a tool for “internal administrative law,” official helpfulness, and, most ambitiously, the optimal vehicle for regulation in general. And it will rid the litigation around guidance of the perverse incentives for strategic maneuvering around the actual effects of guidance—by both agencies and private industry. At the same time, the U.K. approach isn’t at all blind to the genuine risks underlying the use of administrative guidance. As we’ve seen, under this approach, courts will still retain a meaningful role in its domestication. So long as the guidance is sufficiently important, for example because of its substantial practical effects or because of reasonably ascertainable risks for its abuse (as U.K. courts have themselves suggested in their own jurisprudence), courts will retain power to review guidance on a pre-enforcement basis. And at that point, courts could not only review the guidance for illegality or arbitrariness; they could also review the reasons for why agencies designed the particular guidance regime they have and whether these reasons are enough, or rather whether they raise questions regarding whether the guidance shouldn’t be either more binding (perhaps because of an increased need for decisional consistency in the context of mass adjudication) or less binding (perhaps because the need for more experimentation, openness and learning). In fact, under the U.K. approach, and though pushing it a bit further from where it stands today, courts might even possibly nudge, in appropriate cases, agencies to enhance broader participation or “consultation” with the broader public outside the notice-and-comment process.
Yes, it is undeniably true that in the current polarized climax of our administrative law, the U.K. approach seems to disappoint contending forces on all sides. On the right of politics, opponents of administration will lose the constraining effects of a the practically binding test, especially when it is applied aggressively by courts to invalidate guidance and steer it to the notice-and-comment process. Conversely, on the center and the left, by endorsing the U.K. approach, proponents of administration will lose the ability to get courts completely out of the way before the enforcement of guidance and to rely only on managerial, political, and generally non-judicial controls.
That much is again beyond doubt. At the same time, we shouldn’t also ignore the fact that the U.K. approach can serve a kind of middle ground between these visions—a “fierce compromise,” if you will—where both sides both gain something as well as lose something. The political right again clearly loses the “practically binding” test with its strong restrictive “teeth” toward agencies; but it emphatically gets a much more secured and confident way to bring courts to review guidance on a pre-enforcement basis—possibly getting courts more seriously into the business of policing guidance than at present. And the political left and center again will clearly lose the ability to get the courts completely out of the way and to rely solely on extrajudicial mechanisms of accountability. At the same time, however, supporters of administrative guidance also achieve, under the U.K. approach, a judicial framework that is much less suspicious and critical of guidance as such and is much more contextual and nuanced.
Given these bipartisan qualities, the U.K. approach might not just be an improvement on the status quo, as suggested before. It can also suggest a kind of solution where contending forces in our system could finally “come to rest” in the present intense fight over the legitimacy of administrative state (at least as it applies to the context of guidance).
If all this is not enough, it should also be noted that the U.K. approach to guidance domestication is not entirely foreign to us in the U.S. It has some strong domestic support too. For instance, some American administrative law scholars have argued already that the best approach to deal with guidance, and which optimizes on both its benefits and costs, is exactly to subject guidance, on a pre-enforcement basis, to substantive review, as well as to apply a reason-giving requirement on the procedural choices agencies make with respect to whether to use guidance in the first place or how exactly to structure a particular guidance regime. Some scholars have furthermore joined forces in recommending a clear and resounding revival of the more pragmatic approach courts used to apply to the “finality” requirement in the APA. They have even similarly suggested the kinds of tests that the U.K. system draws on in its own guidance domestication regime, which looks at the effects of guidance as a criterion for its reviewability on a pre-enforcement basis rather than one that affects its validity. Recent jurisprudence, including from the Supreme Court, might in fact be showing signs of this kind of pragmatic revival as well. Finally, there are even calls that suggest that it won’t be at all farfetched to move the needle a bit and try to encourage agencies to engage in a broader participatory process for key guidance documents beyond the notice-and-comment process. These calls are not yet judicial exactly. But maybe they will themselves evolve.
Abusiveness: Moving ahead with the benchmarks a modest and experimentalist approach recommends, building on the U.K. approach to guidance domestication quite clearly wouldn’t prove abusive. That approach doesn’t block any chance for agencies to exercise independent judgment, for example. To the contrary, the U.K. regime of guidance domestication seems to expand it over the present status quo which leads agencies to need to hide and respond strategically to litigation on the issue of procedural invalidation under the “practically binding” test. At the same time, the powers courts would retain under such a regime would clearly not create an administrative state that is effectively (and on a wholesale level) a “black hole.” This more flexible regime that exists in the U.K. still preserves a meaningful place for courts to intervene. And it provides courts with tools to enhance agencies’ openness to democratic contestation and political supervision even further, including most clearly by requiring agencies to explain their choice of how they structured guidance regimes (and potentially by compelling some forms of public participation in guidance development).
Experimentalism: Finally, drawing on the U.K. approach to domesticate guidance shouldn’t be done swiftly and fully. A modest and experimentalist approach indeed strongly counsels against that. While, as we have seen just now, there is some measure of substantial similarity between the U.K. and the U.S., we can’t rule out that in practice the weight of the differences between the countries will be the one that would be more substantial. Maybe, for example, American culture is indeed more hesitant at present toward bureaucracy than U.K. culture is, such that building on the approach seen across the pond too forcefully would prove problematic and disharmonic with the present administrative culture here. And maybe a more rigid, and less flexible, judicial regime with respect to guidance domestication correlates better with judicial practice and cultural and professional expectation from the judiciary in the U.S. Maybe also our judges in America can’t be trusted today to exercise sound judgment with respect to guidance domestication in the vein that the U.K. approach requires.
Given this, the appropriate way to start moving along in the direction of the U.K. approach to guidance domestication is again not as a blunderbuss but rather, as I argued in Section II.E, experimentally. This means at a minimum that the possibility of moving our law of guidance domestication in the direction of what we see in the U.K. should now become central and widely discussed, “percolating” until its attractions will become evident (or not). But, as we’ve seen in Section II.E, this does not at all overrule the possibility of at least some careful, either incremental or easily revisable, moves by judicial and other decisionmakers to already today bring us more in line with the U.K. approach.
B. Chevron: Today and in the Future
1. Comparative Administrative Law’s “Constitutional Moment”?
In the context of guidance domestication, it was important to provide some background to ground the ensuing discussion. It was also necessary to justify the need for taking a comparative approach to the issue in the first place more thoroughly. With the next doctrinal domain, things are much simpler. After all, who hasn’t heard of Chevron, arguably the most famous doctrine in all American administrative law? Anyone who presumes to know anything about anything in the field probably can recite Chevron’s two-step framework by heart. Even if just awoken from their sleep, they will quickly and sharply respond that, under Chevron, courts are instructed to defer to agency interpretations of statutes if, drawing on traditional tools of statutory construction, they find that Congress hasn’t spoken to the issue at hand (Step I); and if an agency’s proposed interpretation is ultimately a reasonable one (Step II).
Similarly, after the Court’s decision in Buffington, there is moreover no need to explain why comparative administrative law might be important with respect to Chevron deference. In his dissent in Buffington, Justice Gorsuch himself invoked comparative administrative law—maybe for the first time since the Supreme Court’s decision in Morgan I from 1936—suggesting that the fact that other systems “declined to adopt” something like Chevron reinforces the conclusion that we in the U.S. should back away from it as well. Now that the Court dramatically agreed to take the question it refused to take on in Buffington—concerning the continued validity of Chevron—in two cases called Loper Bright and Relentless to be decided during the October 2023 term and in fact any day now (!), it is not at all farfetched to think that comparative administrative law might be invoked yet again.
On the surface, one might think that all these developments bode well for comparative administrative law. After years of its marginalization, certainly in the U.S., comparative administrative law could not have asked for a better opportunity to come into the spotlight. It is referred to (and will potentially be referred to again) by no less than our highest Court, just like comparative constitutional law makes occasional appearances in the Court’s jurisprudence. Indeed, those Supreme Court appearances might have played an important role in bringing forth the revival of comparative constitutional law in the first place. One might think that Loper Bright and Relentless are finally going to be comparative administrative law’s moment.
On further reflection, however, the initial excitement should be seriously tempered. Justice Gorsuch’s Buffington opinion isn’t a good exercise in comparative administrative law. To the contrary: it gives the entire enterprise a bad rap. To the extent that the Court might follow Justice Gorsuch’s lead in Loper Bright and Relentless, things will be even more unfortunate. Comparative administrative law might be revived, but its “constitutional moment” won’t be a good one. We will have to look at this moment with some measure of embarrassment.
2. Yes, No Chevron Abroad
To be sure, Justice Gorsuch certainly appears to be on stable ground at least when we observe things at surface level. Looking at numerous foreign legal regimes in terms of how their respective courts treat agencies’ proposed interpretations of statutes does seem to suggest that Chevron is not exactly universally popular. As one of the articles that Justice Gorsuch cited in Buffington noted, there’s nothing exactly like “Chevron abroad.”
Take Germany for example. The German administrative law system doesn’t recognize anything like Chevron. Rather, in general, German judges retain “thorough judicial control” on questions of statutory interpretation (and interpretation more generally). While German law does recognize an exception according to which, in cases where courts confront “indefinite legal terms,” they should provide some “margin of appreciation” to agencies’ interpretations, that exception is an incredibly narrow one in practice. Even if it sounds to American ears that statutes are quite often “indefinite,” in Germany, with its distinctive legal culture, that term is understood very differently. It applies only exceptionally and minimally, such as in “examinations in schools and universities, . . . hiring and assessments of civil servants,” and “complex technical assessments.” Nothing more ambitious than that.
Or take the U.K. Law in the U.K. similarly doesn’t recognize a general rule of deference to executive interpretations of statutes. To the contrary: the rule in the U.K. now is that courts “say what the law is.” The only place where courts in the U.K. have recognized the possibility of deference on questions of law is when interpretations of statutory terms are made by the U.K. tribunal system which conducts the lion’s share of administrative adjudication in the U.K. This may be an important exception, certainly more than the one that exists in Germany for “indefinite legal terms.” But it is still quite narrow (among other things because the English adjudicative system operates in a highly judicialized fashion and because it doesn’t capture the many consequential forms of administrative policymaking outside the tribunal system).
Continue across seas and oceans to Australia. There, too, no matter how broadly you might look, you won’t see any Australian Chevron in sight. The idea of explicit judicial deference to the administration on questions of law in Australia would be almost heretical. The High Court in Australia holds to the view that the principle of constitutional separation of powers there mandates a strong Marburyesque control of judges over statutory interpretation in general. No deference is allowed. In fact, in a famous judgment from 2000, called Enfield, the Australian High Court, explicitly referring to Chevron, has rejected the possibility of having an indigenous Chevron doctrine in Australia.
Go now to Israel. The Israeli administrative law system similarly doesn’t have anything like Chevron. Judges there have full control over determining the meaning of statutory terms applied by executive departments. The issue is entirely and fully judicially led. In fact, as in Australia, the Israeli Supreme Court also had an opportunity to opine on the possibility of an Israeli Chevron (or, more accurately, an Israeli Auer doctrine) that acknowledges some place for explicit interpretive deference to the executive as late as 2021. But, again as in Australia, the Court said emphatically no and declined the invitation.
Go now to France. There, the situation is again very much the same. What in French is sometimes called the “État de droit” (roughly, the principle of a “state committed to law”) is understood by French courts, and especially the Conseil d’Etat, to require total judicial control over statutory interpretation.
Finally, expand your gaze to the European Union. No surprise there as well: European courts also deny the existence of any formal deference to administration on questions of law.
We could have potentially gone even farther and wider to other places, but we would have likely come back with very similar results.
3. The Shallowness of the Comparative Analogy
Despite all this, at the end of the day, Justice Gorsuch’s comparativism in Buffington is deeply mistaken. The reality that other systems don’t have something like Chevron doesn’t support in any way or manner its overruling. It doesn’t even support the need for us to cut back on Chevron under existing conditions. Saying something like this is exactly the kind of example of the blunders that occur when doing VERY BAD comparative law. It obviously fails the test of a modest and experimentalist approach that I have argued is especially called for in the field of comparative administrative law.
Most clearly, Justice Gorsuch’s Chevron comparativism is shallow as shallow can be. He didn’t engage even in a minimal attempt to point out various crucial contextual differences amongst jurisdictions when he invoked the broad statement that other systems refused to adopt Chevron as a reinforcement for his call that so should we. Cumulatively at least, these differences significantly complicate any ability to infer something strong from that supposed refusal at present. To the contrary: they seem to strongly condemn such inference.
Start with the fact that many of the systems that Justice Gorsuch supposedly had in mind, including the ones discussed before which he might not have had in mind, are parliamentary systems. In such systems, the closer inter-branch connection makes it much easier for the political branches, in principle at least, to respond to determinations of statutory meaning by courts if they believed courts erred. And that response is more likely to represent the agencies’ view that was judicially rejected because, again, the government (which closely supervises agencies) usually controls the legislature. What’s more, and this encompasses also non-parliamentary systems (like France or the EU), evidence suggests that legislatures in other jurisdictions are more functional than the American Congress, which is notoriously known as a dysfunctional one (in large part perhaps because of its high degree of polarization and partisanship).
Continue with the fact that, as we’ve already seen in the context of the discussion of the regime of guidance domestication in the U.K., other jurisdictions don’t necessarily have similar processes for formulating general policies as we do in America. Indeed, the notice-and-comment process is somewhat globally unique certainly in its scope and legal foundations. In most other countries, agencies formulate general policies without public notice and participation. They submit such policies to other kinds of processes, more political or traditional in nature, like internal executive branch scrutiny procedures as well as to the attention and sometimes confirmation of their legislatures. To the extent that agencies in other jurisdictions engage in more public comment procedures, it is much less systematic and spotty. It can result from specific statutory obligations they have in certain substantive statutes or because they seek such public engagement voluntarily. Though a movement to intensify the process of public engagement in general policymaking in other countries may be under way, as we also saw previously in the discussion of guidance, it should be noted that it is far from complete and still deeply uncertain.
This divergence can help explain why we don’t see Chevron abroad and do see it here. In jurisdictions that lack notice-and-comment procedures, more robust judicial review can “compensate” in some important sense for the more closed nature of the policymaking apparatus. By contrast, in America, where notice-and-comment is the default for development of general policymaking, such compensation is not similarly required. And while Chevron of course applies more broadly to agency decision-making beyond notice-and-comment, since Mead, it is at least more likely to apply in that specific setting.
Justice Gorsuch’s invocation of comparative administrative law to elevate Chevron skepticism in America also ignores how judiciaries diverge across nations and systems. Germany for example has a specialized system of administrative law courts which are moreover divided to subject matters (like a labor administrative law court or a tax administrative law court). Israel and the U.K. have general, non-specialized courts as they’re both part of the so-called common law or “Anglo-American tradition” of administrative law (as Justice Frankfurter has called it). But their highest judicial instances don’t have discretionary dockets. This means that denying Chevron in those systems isn’t likely to create, even in the short term, inconsistent applications of the law. In the U.S., in contrast, things are quite different. Our judicial system is a generalist one and is also highly dispersed (indeed, our country is much bigger than many). And our Supreme Court has a highly discretionary docket (that also seems to gradually shrink with the years). As a result, Chevron seems to better protect consistency in statutory law under our unique American conditions.
Jurisdictions also diverge between them with respect to how they go about interpreting statutes in general. In many other jurisdictions outside the U.S., purposive, pragmatic, or dynamic theories of interpretation are well accepted and grounded. Indeed, courts outside America are quite comfortable looking to text, context, and purpose when they construct statutes. They don’t proudly announce, as we in the U.S. are doing now, that “we’re all textualists now.” This divergence also substantially complicates our ability to infer something clear about the lack of Chevron abroad. For one thing, the dominance of purposivism outside the U.S. could mean that courts and agencies’ views about how to read statutes may not be so divergent. The type of reasoning expected from both courts and agencies about how to read statutes could be the same. They might very well reach similar conclusions compared to a system such as ours in which agencies may be more purposive while courts more textualist. In addition, the dominance of purposivism, pragmatism, or dynamism outside the U.S. means that the consequences of having something like Chevron there would not have meant what we would expect from it here. If purposivism is the reigning statutory interpretation paradigm, courts under Chevron could have concluded that it is unreasonable for agencies to just rely on the simple meaning of the text. That they actually need to stretch the text given a statute’s context or purpose.
Finally, and not entirely unrelatedly to the point about theories of statutory interpretation, the kind of judicial culture of strong hostility to the administrative state that we see in America, is generally quite foreign outside of it. Judges don’t generally see administration as such a threat to the rule of law in many other liberal democracies. Rather, they “trust[] and accept[]” administration. They often see it not only as constitutionally permissible, but even mandatory. Deep “anti-administrativism” hasn’t, in other words, gone global just yet. This means that even without an explicit Chevron regime, courts are more likely than not to reach the same conclusions as the administration did (even if they would need to do more “work,” so to speak, to get there, including by performing de novo statutory interpretation). More broadly, this means that the consequences of a legal regime that has no Chevron are simply much less meaningful than in a system like our own that does exhibit some vivid measure of judicial “anti-administrativism.”
All this highlights just how plainly erroneous it was to suggest, as Justice Gorsuch did in Buffington, that the comparative absence of Chevron indicates that we could also easily say goodbye to it here, or even just cut it back. Justice Gorsuch ignored all the institutional and contextual details that matter, or should matter, when one tries to engage in (serious) comparative administrative law.
4. The Cherry-Pickiness of the Comparative Analogy
But Justice Gorsuch’s comparative shallowness in Buffington in fact stretches even beyond that. Justice Gorsuch’s suggestion that Chevron doesn’t exist abroad misses the fact that interpretive deference is actually a growing theme in foreign jurisdictions, which is gradually gaining some important adherence. Indeed, even though the consequences of having Chevron abroad would be different, as we just saw, that does not mean that systems are not drawn to it.
So, for example, in the U.K. where the possibility of judges deferring to executive interpretations has been emphatically rejected (at least outside the context of interpretations by administrative tribunals), there are now scholarly voices that suggest that extending deference in the U.K. beyond that context would be overall desirable. In Israel, as discussed before, the Supreme Court has recently rejected something like Auer deference explicitly. But the decision itself was only 5-4 against. And given broader changes that were occurring in Israeli constitutional politics, it is not without question that the tables will in the end turn. More broadly speaking, other jurisdictions also have various techniques to grant deference to agencies even if on a formal level they don’t have anything like Chevron. And scholars sometimes note that courts rely on these techniques more systematically or with more enthusiasm than in the past. For instance, European courts have sometimes resorted to classifying issues that could have been classified as “legal” matters, which get no deference, to “factual” or merit issues that do. Australia has also arguably seen similar techniques with more intensity. And similarly with other jurisdictions and places.
This movement I have just described toward embracing more judicial deference to agencies in interpretive affairs, whether explicitly or implicitly, is of course not entirely surprising given the globalization and fluidity process previously detailed in Section II.B. To the extent, for example, that legislative policymaking has become harder even in parliamentary systems, the attractiveness of something like Chevron increases dramatically there, too.
Related to the moves that we’re seeing in the direction of having more Chevron-like features in other systems around the world, it should be noted that Justice Gorsuch’s broad comparative statement in Buffington, that other systems “declined to adopt” something similar, does seem to have quite a big hole in it. That statement ignores the situation that is occurring in the legal system of our neighbor, Canada, which, though it doesn’t have something exactly like Chevron, is not that incredibly far away from getting one.
Indeed, Canada seems to be one of two other jurisdictions in the world (as far as I know at least) that, like us, explicitly and unapologetically recognizes that judges do not get to exclusively “say what the law is” when administrative agencies that oversee statutes interpret them. In other words, like in the United States, judges also need to defer to reasonable statutory interpretations by agencies.
Canada’s modern acceptance of interpretive deference dates back in some sense already to 1979, even prior to our own Chevron. But that principle is now firmly and clearly grounded in Canadian administrative law—confirmed once more in a seminal recent decision by the Canadian Supreme Court from 2019 in a case called Vavilov.
Interestingly for present purposes, and importantly as well, Canada’s own deference regime might be said to have gotten closer to the Chevron-regime with time. In the past, deference in Canada was closer to what we know in the United States from Skidmore. The duty to defer was recognized. But to decide when to defer (and how strongly that deference ought to be), Canadian courts used to engage in a more contextual inquiry which looked for example to the kind of expertise that agencies possess (in general and in the particular instances) or to the specific provisions they seek to interpret. Courts’ analysis of the deference question at the time was labeled “functional and pragmatic.”
The Canadian Supreme Court tried to go more rule-like and was edging slowly closer to Chevron in its judgment in a case called Dunsmuir from 2008. There, the Court specifically walked back from the “functional and pragmatic” approach that it had endorsed before. Rather, it simplified the inquiry into when Canadian courts should defer to reasonable interpretations by agencies. Under this reformed framework, which the Canadian Supreme Court called the “standard of review analysis,” courts should defer to agencies’ interpretations of statutes if they’re reasonable in all cases except in “certain categories of issues where the promotion of certainty, finality, and predictability trumped the values served by deference.” The Canadian Supreme Court moreover identified four “non-exhaustive” categories where deference should not be accorded under this standard, and courts should engage in de novo review: First, when the issue presents a question of law “of central importance to the legal system as a whole.” Second, in constitutional questions. Third, in what the Canadian Supreme Court called in Dunsmuir “true” questions of jurisdiction in which an agency “must explicitly determine whether its statutory grant of power gives it authority to decide a particular matter.” Finally, “questions regarding the jurisdictional lines” between two or more agencies.
Dunsmuir’s attempt to create more of a rule-like framework for deference didn’t fully succeed, however. One important reason for that was that the Canadian Supreme Court justified deference to administration in Dunsmuir based on agencies’ expertise. But that led to various instances where courts and litigators started to question whether agencies’ decisions in specific instances truly reflect expertise and to the denial of a more deferential judicial inquiry.
And so, in 2019, Vavilov, the Canadian Supreme Court entered the fray again edging even closer to Chevron. In Vavilov, the Court strengthened its holding in Dunsmuir, highlighting that the rationale underlying deference isn’t expertise as such (or isn’t expertise in a manner that justifies denying review of the reasonableness of the agency’s proposed interpretation and transforming the analysis to de novo judicial review). Rather, the Vavilov Court said that the justification for deference to reasonable interpretations is grounded in legislative choice; that the “very fact that the legislature has chosen to delegate authority” is what justifies deference to reasonable agency interpretations. As a result, a relatively strong presumption of deference is now the law of the land in Canada. The only cases that the Court said could justify courts to not review agencies’ interpretations under a deferential standard are when the legislature specifically mandated differently or when the rule of law requires it. And though the “rule of law” category is a broad standard, the Court’s understanding of the category seems minimal and encompasses cases that raise “constitutional questions, general questions of law of central importance to the legal system as a whole and questions regarding the jurisdictional boundaries between two or more administrative bodies.”
To clarify once more: Canada’s deference regime, even following Vavilov, is not precisely like Chevron. There are important differences here. Most clearly, the Vavilov doctrine doesn’t have a two-step framework like Chevron, but rather deference on interpretive issues is granted holistically without insisting that courts first determine if terms are ambiguous or not. Moreover, deference in Canada is only achieved after a court conducts “reasonableness” review. And that review can be somewhat rigorous, not that far in fact from the kind of analysis we see U.S. courts perform sometimes under State Farm and its requirement of “reasoned decisionmaking.” In addition, Canadian courts may exemplify more confidence than courts in the United States to intervene rather than to defer under this reasonableness analysis, for example, because they’re aware that there is more of a possibility in the Canadian system for Parliament to respond and correct erroneous interventions, or because the legal culture in Canada seems more trusting in general in the ability of judges to improve administration.
Still, the fact that Canada, as well as other jurisdictions like Israel or the EU and maybe even the U.K. and Australia, are also moving in the direction of enhancing their own deference regimes (either explicitly or more implicitly) is telling. It indicates once again just how superficial Justice Gorsuch’s invocation of comparative administrative law in Buffington was. It failed to recognize that even systems that seem on paper at least to have less of a reason to increase deference to administration are nonetheless drawn to do so.
5. The Abusiveness of the Comparative Analogy
But Justice Gorsuch’s comparative move in Buffington has one last flaw worth emphasizing. Not only was it shallow and even selective and cherry-picky; it was also likely abusive.
We should not be naïve. Justice Gorsuch’s opinion in Buffington did not come from nowhere. As we’ve seen before, we are in a context where there is an intense attack on our administrative state, trying to cut its wings further and further. Unsurprisingly, Chevron deference is a crucial arena where this battle is being fought. And Justice Gorsuch’s move in Buffington was a clear attempt to advance that cause. By referring to foreign practice, Justice Gorsuch tried to appear as though the consequences of overruling Chevron or significantly cutting it back would be completely benign. After all, if other systems don’t have it, and those systems survive just fine, why can’t we? But cutting back on Chevron significantly now would not be benign. Not only do other jurisdictions have arguably good reasons that we lack to not adopt Chevron (as we have seen), but Chevron also seems quite important at present to maintain the “minimum core” of our constitutionally legitimate administrative state.
Recall how the overall Chevron regime today exactly looks. First, we have Mead that limits the domain of Chevron only to cases where delegations have the “force of law.” Second, and as a result of very recent developments, we have a new and potentially highly expansive “major questions” doctrine that denies deference and requires affirmative congressional legislation before an agency can proceed in issues that have significant political or economic ramifications. Third, we also have a judiciary that is more and more confident in finding when congress directly speaks to the question at hand, under Chevron Step I, in large part because the judiciary is more textualist today (and more eager to narrow statutes’ domain). Finally, we have a judiciary that has grown much more hostile of the administrative state, if not entirely skeptical of its constitutionality.
With all this in the background, it becomes increasingly hard to see how further significant cutbacks on the already frail deferential Chevron regime aren’t really about “just” making our administrative law more restrictive toward administration and thus more protective of, say, values like the rule of law or private liberty, which can be reasonably disputed. Rather, it becomes more and more convincing to see such a move as one whose goal is to entirely shrink the space for independent administrative action in the context of statutory interpretation and therefore threaten what Section II.E argued was the administrative state’s “minimum core.” The invocation of comparative practice to suggest otherwise—as though the further cutbacks on Chevron are plain vanilla or just an incident of innocent learning from others in a potentially more global dialogue—is deeply misleading. And when it is done in such a shallow, acontextual, and selective way (as it was in Justice Gorsuch’s opinion in Buffington), it begins to look like a textbook case for an “abusive” use of comparative administrative law.
For all these reasons, it should be clear why Justice Gorsuch’s comparativism in Buffington ought to be emphatically rejected. Comparative administrative law doesn’t support anything like what he had suggested. It is actually quite the reverse.
And in the forthcoming Loper Bright and Relentless cases, coming any day now, this is exactly what the Supreme Court should say. If the Court in Loper Bright and Relentless wishes to go ahead and significantly cut-back on Chevron or overrule it, without any further changes in our law, it is welcome to do so. But it should at least expose itself to criticism rather than hide behind the posture of shallow, acontextual, and abusive comparative administrative law.
6. Beyond Buffington, Loper Bright, and Relentless: The Future of Chevron Through the Lens of Comparative Law
Once all this is said and done, though, the fact that comparative administrative law can’t justify today either overruling or even dramatically shrinking Chevron deference, shouldn’t mean that this will be so forever and ever. For one thing, as previously suggested, what makes the invocation of comparative administrative law as support for such dramatic consequences potentially abusive are the factors in the existing regime of Chevron deference, which cumulatively characterize such a move as unreasonably limiting—including the existence of a revamped major questions doctrine or a highly restrictive form of textualism. As a result, and at least to avoid that specific charge, the Court could significantly restrain the potential implications of this new major questions doctrine, or soften its rigid, statutory domain–reducing, textualism. This would at least make the consequences of such a move not so dramatically harmful (even if it won’t, I hasten to emphasize, make that move attractive overall).
In addition, and more importantly for my purposes here, the reality according to which so many different systems refused to endorse something exactly like Chevron should prove nonetheless provocative. It triggers the question of whether we might in the future at least be better off without Chevron as well, or at least whether we should not try and move in this direction modestly and experimentally.
And, indeed, it would be wrong to think (as some seem to have boldly argued) that Chevron is in some sense “inevitable” for us. To the contrary: Chevron didn’t necessarily get us to a good place, even if today, under present conditions, cutting back on it would be harmful and abusive. Chevron, after all, didn’t create a simple or stable regime. The inevitable discussions about its varying steps zero, one, one-and-a-half, or two is a strong indication of that, as well as the cottage industry of commentary that has developed around it trying to figure out those steps ad nauseam.
Moreover, and I think much more importantly, it is unclear as well if the Chevron framework channeled the kinds of debates that would be productive and healthy to have in our administrative law—about the place of administration in society and what it should achieve—into a constructive framework. Yes, Chevron is sometimes described as a manifestation of legal realism, reflecting the fact that law sometimes “runs out.” And, certainly for this present author, realism is an attractive feature. But, in all honesty, Chevron isn’t deeply realist at all. Quite the contrary. Chevron still preserves a rather strict, indeed highly formalistic, division between law and politics, suggesting that some things are appropriately law (like discerning when Congress speaks directly to an issue) and some things are not (with increasing frequency, basically anything beyond that). As a result, and at least given the way our legal culture has evolved, Chevron created a kind of dynamic that systematically removes the discussion in our administrative law away from what really matters, or what should matter.
On one hand, conservatives and those who are worried about robust administration from the political right are increasingly drawn to thicken the “law” side in Chevron, relying on textualist or other formalistic machinations to suggest how law, properly understood, doesn’t “run out” and constrain administration (mostly at Step I). Instead of relying on more prescriptive reasons to suggest why administration should in fact be constrained (because it may be arbitrary or unjustifiably harsh on private entrepreneurship or freedom), their formalistic language tends to either ignore those reasons at all or is simply hiding the ball. For their part, liberals and progressives from the center and the left of politics also face an unattractive choice of their own under present conditions: they can rely on the more prescriptive side of Chevron, which calls for policy considerations and reasons grounded in effects on the real world of policymaking, and thus bite the bullet in the face of the conservative formalistic game (mostly at Step II). That might have worked well in the past. But in the face of an increasingly formalistic bench, not anymore. As a result, progressives have turned to a second option—embracing their own version of formalism or “progressive textualism” that again hides the ball (even if it sophisticatedly shows that formalism can reach attractive results for progressives as well).
Judges in administrative law are either playing the same game or are caught in the same dilemma. And the fights continue ahead with no resolution in sight, even enhancing our system’s polarization between conservatives and progressives, supporters of judicial review and critics, and more.
A more faithfully realist and potentially constructive framework for our system might therefore be one that would indeed do away with Chevron root and branch. Instead of assuming a formalistic division between law and policy, as Chevron does with the two-step it imposes, an alternative framework could be something more like we see today in Canada following the Canadian Supreme Court’s judgment in Vavilov. According to this approach, any issue of statutory interpretation should start with a presumption of deference, with no Step I or Step II or anything before, after, or in between. However, working on the background of this strong deferential presumption, which of course reflects and admits the value of agency decision-making as a general matter, judges would still be able to review the “reasonableness” of agencies’ statutory interpretation and, specifically, if agencies have given, in the jargon familiar to us from the State Farm case and its progeny, a “reasoned explanation” for their interpretive choices, including an explanation that sensibly combines or mixes between considerations that stem from either text, structure, and precedent (on the one hand) or from policy (on the other hand). And, if courts end up finding that these explanations are wanting (that is, and again using the relevant jargon, that they’re not sufficiently “reasoned”), agencies will then be able to go back to the board and try again; that is—see if they can on another try earn the judicial deference the presumption should regularly afford to them (including by presenting a more persuasive mix between the socio-legal, socio-technical, and socio-political reasons for their actions).
This sort of Canadian-inspired framework for administrative deference does appear to me to have the potential to move us into a more constructive place on the issue of judicial review of agencies’ statutory interpretation choices. It gets rid of the artificial and formalistic distinctions that Chevron perversely creates. It channels discussions about statutory interpretation not to what law or policy truly is and binary tradeoffs between them, but rather to the questions of the appropriate reasons and justifications for administrative action, recognizing that law and politics exist on all sides. And, again quite importantly, this framework also has something important for all sides in the currently deeply polarized environment of our administrative state, imagining a new place where, once again, contending forces might potentially “come to rest.”
True, under this new, Canadian-inspired framework, critics of administration from mostly the right of politics do not get judges who always determine “what the law is.” Deference is recognized, accepted, and entrenched. Agencies can moreover get a second chance to come back with more forceful reasoning. But, under this new Canadian-inspired approach, critics of administration do get to preserve judicial review of administration across the board, without pockets of deep or absolute deference where law supposedly “runs out.”
And true, under this new, Canadian-inspired framework, supporters of administration from mostly the left and center of politics lose the form of authoritative deference with its complete immunity from judicial intervention that agencies may enjoy today under Chevron. But, at the same time, supporters of administration do emphatically earn under this new Canadian-derived framework a strong and robust presumption of deference across the board. And they also get a framework that is overall much more sympathetic to a view of law and administration that is pragmatic, prescriptive, and sincere (rather than hides the ball).
This all strikes me as powerful reasons in favor of a Canadian -inspired approach to deference. And to the need for us to seriously consider, also from a perspective that is sympathetic to administrative power, discarding Chevron going forward.
But, of course, the fact that this kind of Canadian-inspired framework may sound theoretically attractive on paper, so to speak, doesn’t mean we can bring it here right away. A modest and experimentalist approach strongly counsels against that. After all, as we have seen, there are meaningful differences between the United States and Canada (and, for that matter, many of the other jurisdictions that have something different than Chevron), including a potentially more functional legislature, more purposive rather than formalist legal culture, and a judiciary that is not as deeply hostile to the administrative state as ours may presently be. The circumstances that make the Canadian approach work there don’t necessarily exist here.
Precisely because of this, the thought that the Loper Bright and Relentless cases would themselves be a potential vehicle to move the needle in this direction of a regime of deference seen in Canada, looks naïve. Indeed, the possibility for imagining a new deference regime that expands the possibilities of deference and does away with formalistic unhelpful distinctions between law and politics, seems to be deeply oppositional to the current “anti-administrativist” mood at the Court. This sort of anti-administrativist mood is likely the fact that explains why the Court has taken Loper Bright and Relentless in the first place.
That doesn’t mean, though, that this will be the case for now and until the end of times. Our legal culture isn’t static. It may be evolving as we speak. For instance, there is pressure on the Court to change, and that pressure may be growing (including by, in my view, not entirely obsolete discussions of “court reform”). Possibilities for meaningful reconsideration of our public law, including our administrative law, may be on the horizon—in ways that differ from where our present Court is trying to move us. If so, and to the extent that the Canadian approach does have presumptive appeal for this potential, though only dimly seen at this stage, future, there is no reason why we can’t start working to bring it about. A modest and experimentalist approach to comparative administrative law suggests not only that we perhaps should, but also how we could do it, no matter what the Court itself ends up saying in Loper Bright and Relentless—whether it eliminates Chevron, dramatically cuts it back or leaving it as a corpse.
IV. PATHS FOR REVIVAL
My goal in the lengthy discussion leading up to this point has been to convince readers that it is both possible and desirable to revive comparative administrative law. That we need to make it a meaningful enterprise today, just as it was for the pioneers of the field and those who followed in their immediate footsteps. The “foreign point of view,” as Frank Goodnow called it, in our administrative law is truly missing these days. And it is entirely to our detriment.
Assuming for the moment that I have succeeded in the ambitious task I have set to myself here, another question becomes important, though: How exactly can we bring this revival about?
Of course, as previously mentioned, there are already some promising signs that illustrate that comparative administrative law is starting to come to its own again, building on the increased fluidity and globalization of the field as detailed in Part II.B. Moreover, there is something slightly misleading about the question I’m asking. After all, the most important way to help bring comparative administrative law’s revival is not by fiat. Rather, it is to convince other people that it is both possible and worthwhile simply by doing it well. Nonetheless, given how much the enterprise happens to be marginalized in the discussion today in the U.S., it does seem valuable to consider some more institutional and systemic ways that could support and enhance the chances that we would indeed see the revival of comparative administrative law prevail. Given all that I had said above about both the virtues of the enterprise and its increased possibilities, taking such steps to nudge the rebirth of the field has, at a minimum, a strong presumptive case.
(1) The law school curriculum: One obvious place to start with here is in law schools. As previously mentioned, comparative administrative law isn’t currently being taught in most law schools on a regular basis. And comparative materials are moreover not integrated to the central casebooks or treatises in administrative law. But there’s no strong reason why this can’t change, at least modestly or gradually. Offering an elective law school class or seminar on comparative administrative law would obviously be ideal. But even incorporating some foreign materials to general administrative law classes and to the central casebooks or treatises would be a significant improvement on the status quo. Law schools that already offer the possibility of comparative constitutional law classes or seminars might moreover consider whether the content of these classes should be adapted to include more on comparative administrative law. In the future, it won’t be totally out of the question to consider replacing general comparative constitutional law classes, at least if they’re not supplemented by a separate comparative administrative law class, with a different class that would unify and mesh themes from both constitutional law and administrative law—perhaps with the new title of comparative public law. Such a change will obviously coincide with the trend evident across a growing number of law schools to move constitutional law away from the 1L curriculum and to replace it with mandatory LegReg or their iterations. It will also coincide more broadly with the importance of administrative law even to the traditional common law subjects.
(2) Scholarship: A related place worth going to for increasing the chances for the desired revival of comparative administrative law would obviously be the production of scholarship itself. In preparing classes, casebooks, or treatises, it should be reasonably easy for domestic U.S. public law scholars to draw on the now slowly increasing body of work in comparative administrative law—which is already in large part written in English. But, of course, for the comparative administrative law field to truly catch on and achieve its promise, it’s important not just to draw on the existing pool. We need to work to expand it; that is, to create more scholarship in comparative administrative law that would complicate and broaden what we already know.
Given the present status quo of marginalization and the potential challenges of doing comparative administrative law, this is no small feat. But that doesn’t mean that there is no way to address the challenge. An especially important avenue to explore is to encourage and initiate co-authoring with foreign scholars. Indeed, some of the most important contributions in the field of comparative administrative law, in the past and more recently, are a result of cross-national or cross-linguistic scholarly collaboration. For example, Professor Bernard Schwartz cooperated with the major English public law scholar Professor H.W.R. Wade to produce a still illuminating book that systematically compares the English and American administrative law systems in the 1970s. And Professor Susan Rose-Ackerman and Michael Asimow are more contemporary examples of scholars who consistently engage in scholarly collaborations with foreign scholars (with, I should add, substantial merit). In an ideal world, many domestic administrative law scholars will begin engaging in similar collaborations themselves. The previously discussed reality whereby more and more conferences are conducted specifically on comparative administrative law, and the emergence of transnational scholarly networks that engage in work of administrative comparison (especially in the European context), suggests that the possibilities of academic collaborations are already meaningful and out there waiting to be exploited.
(3) The bar and the government: Moving beyond law schools and the halls of the legal academy, there are other institutions that can assist in facilitating the likelihood of the comparative administrative law revival as well. The American Bar Association (“ABA”), and particularly its Administrative Law & Regulatory Practice section, is one such institution. Today, the ABA’s interest in administrative law comparison is quite slim, probably a reflection of the general marginalization of the field today. Interestingly, however, that has not always been the case. Indeed, Professor Ronald Levin has collaborated in the past, under the ABA’s auspices, with other co-authors to produce a valuable book on the administrative law of the EU. And the ABA actually has a richer past of administrative law comparison. This demonstrates that the ABA in principle certainly has the capacity be an institutional force for the acceleration and better assimilation of comparative administrative law into our system.
Another, and perhaps even more central, institution that should be of focus here is the Administrative Conference of the United States (“ACUS”), which is, of course, an enormously influential body in the administrative law space. Alas, ACUS too has rarely drawn on comparative administrative law in its influential work, even though its position to bring in different scholars as well as practitioners from the field, and to influence the field’s trajectories, is in some sense unparalleled. There is no reason, though, why ACUS can’t change tack on that, too—either by mandating more projects that draw on administrative law comparison or bringing in experts from foreign jurisdictions to react, respond, and enrich its various reports and recommendations. Finally, the Office of the Attorney General of the United States (“AG Office”) has a somewhat more hidden role in contemporary administrative law. It is officially in charge of the interpretation and the implementation of the APA across the federal government. And on occasion it does use its role to express its views about broad administrative law issues of the day (even quite controversially). But the AG Office also has the capacity for much more, including more in the context of comparative administrative law. It can, for example, establish an office or unit engaged in comparative administrative law, which would also encourage potential cross-national collaborations (perhaps building on the experience of the recent trend toward more and more APAs around the world). And it can moreover work to increase and facilitate collaborations between federal agencies at home and abroad in other ways as well.
(4) The judiciary: Even if only some of those institutional paths will be pursued, it is quite likely that we will also begin to see some change in litigation practices as well. After all, the kinds of changes I have described in law school teaching, scholarship, and bar and governmental practices will create a much more favorable environment for judges and litigators to advance arguments drawing on comparative administrative law. At the same time, there’s no reason why judges themselves can’t proactively contribute to this sort of effort too. In the field of constitutional law, there was once talk about the growth of transnational networks of constitutional judging or a “global community of courts.” Constitutional courts’ judges were “seeking information, guidance, stimulation, clarification, or even enlightenment . . . [which were] keeping the judicial mind open to new ideas.” Without necessarily arguing that we need to go back to the heydays of that particular movement, partly because of some of the costs of excessive universalism that attended it at the time, it is not out of the question to think seriously about the need and desirability of some form of a cross-national administrative law network of judges that would indeed help keep the “judicial mind open to new ideas.” There is, in fact, some precedent for that in the U.S. in particular. Indeed, the Schwartz and Wade book previously mentioned was a result of an exchange that was initiated by the Judicial Conference of the United States and included Chief Justice Burger and Justice O’Connor. It doesn’t seem beyond the pale to revive this sort of tradition.
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As should be clear, the foregoing doesn’t exhaust the menu of institutional options that we might deliberately endorse for reviving comparative administrative law. But it is certainly a good place to start. Change in any of the directions flagged above in how we teach the subject of administrative law in law schools, in how we do research and write in this field, and in how we practice and adjudicate disputes involving administration would be a highly welcome one. And given past precedents and the already morphed global environment, these changes are not at all outside our grasp.
CONCLUSION
In a justly famous article, Felix Frankfurter once described Frank Goodnow and Ernst Freund, whom he also called the “pioneer[s]” of the field of administrative law, as “lonely watchers in the tower.” In that, Frankfurter was obviously referring to the fact that Goodnow and Freund were largely alone at the turn of the twentieth century in realizing that the field of administrative law even exists. However, given how much Goodnow and Freund were both discovering the field of administrative law based on keen observation of developments in other countries, Frankfurter’s quip should be understood slightly more narrowly. He wasn’t identifying Goodnow and Freund as just “watchers.” They were comparative administrative law watchers.
Today, contrary to Goodnow and Freund’s time (and even Frankfurter’s), no one doubts that administrative law is a “thing,” even an incredibly important one. Indeed, nowadays administrative law has many, many watchers crowding the tower. But as far as keeping up with and taking seriously the administrative law of other countries and jurisdictions other than our own, Frankfurter’s observation still rings true. In America, the field of comparative administrative law is one that is occupied by very few watchers. As I tried to show here, this wasn’t always the case. But, alas, it clearly is now.
My claim here has been that this situation calls for quite urgent change. Comparative law should be much more on our radar in administrative law than it is today. The possibilities of doing comparison have incredibly increased in a more globalized and cross-nationally fluid world. Its benefits are substantial, both in general and especially in times of administrative and democratic pressure. And while comparison always carries with it important risks of misuse (and even abuse), there is no reason why we should walk away from the enterprise instead of embracing it with appropriate caution.
This Article is a first stab at trying to put some meat on these general claims by illustrating what a cautious approach to comparative administrative law (which, as I have suggested, is a modest and experimentalist one) can teach us in two central doctrinal domains of law and administration: the domestication of administrative guidance and Chevron deference. But, of course, this is just the tip of the iceberg. Further comparative study of other domains in our administrative law (and of different jurisdictions than the ones that I have referred to or am able to refer to) can yield even more insights.
As is always the case, the question of whether we will take the necessary steps to rid ourselves of our administrative law parochialism, and do so responsibly, is ultimately up to us. The coming Loper Bright and Relentless cases at the Supreme Court could prove to be a test case for exactly that. For my part, I certainly hope that we will and that the watchers will once again stop being so lonely.
