Article Title

Progressive Textualism in Administrative Law

Authors

Kathryn E. Kovacs, Rutgers Law School

Abstract

Nicholas Bagley’s article The Procedure Fetish is destined to be a classic. In it, Bagley systematically dismantles administrative law’s obsession with procedure. He decimates the arguments that procedure is necessary to legit-imize the administrative state and avoid agency capture. He nullifies the con-tention that administrative law is neutral by showing how proceduralism inhibits regulation and “favors a libertarian agenda over a progressive one.” Bagley urges progressives to abandon “gauzy claims about legitimacy and accountability” and approach procedure with skepticism.

The Procedure Fetish addresses the normative question of what adminis-trative law ought to require. Bagley writes about how progressives should solve the “optimization problem: [w]hich set of procedures will best balance the competing goals of efficiency, the protection of legal rights, and public accountability.” Bagley does not, however, provide an answer to the ques-tion of where progressives should find currently binding administrative law. The answer is simple: the Administrative Procedure Act (APA). Progressive textualism provides the missing piece for Bagley’s analysis.

Recommended Citation

Kathryn E. Kovacs, Progressive Textualism in Administrative Law, 118 Mich. L. Rev. Online 134 (2019).
Available at: https://repository.law.umich.edu/mlr_online/vol118/iss1/2