I appreciate the opportunity to continue the conversation on democracy in the administrative state that I hoped The Public’s Law would inspire. In his review, Mark Seidenfeld critiques some of the book’s legal reform proposals. He argues that I am too optimistic about the general public’s ability to participate in the administrative process, about administrators’ competence to reason about social values, and about courts’ capacity to police such reasoning.
The aspects of my argument Seidenfeld criticizes come at the conclusion of the book’s broader study of the intellectual and institutional history of the administrative state. This history is meant to challenge the received wisdom about what that state is for and how it ought to operate. The Public’s Law argues that the legitimacy of the administrative state is not just a matter of technocratic expertise or finding a workable balance between interest groups. And it’s certainly not just a matter of carrying out the president’s will. Rather, the history of the administrative state shows how the people can use it to reconstruct society in the interest of freedom. I provide a short summary of my book’s historical findings and normative arguments before turning to Seidenfeld’s critique.
The Values of the Administrative State: A Reply to Seidenfeld,
Mich. L. Rev. Online
Available at: https://repository.law.umich.edu/mlr_online/vol119/iss1/7