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108 Colum. L. Rev. Sidebar 15 (2008)

handle is hein.journals/sidbarc108 and id is 1 raw text is: COLUMBIA LAW REVIEW SIDEBAR VOL. 108 APRIL 29, 2008 PAGES 15-22 ADMINISTRATIVE LAW AGONISTES McNollgast* Daniel B. Rodriguez** In Procedures as Politics in Administrative Law,' Lisa Bressman pulls together two disparate traditions in contemporary administrative law scholarship: one that stems from the work of generations of leading legal scholars and the other that emerges, more recently, from leading work in positive political theory (PPT) in political science. Professor Bressman explains why and how theories ofjudicial control of regulatory administration must take account of both how agencies function and the political environment in which administrative decisionmaking occurs. After all, administrative law shapes administrative politics in profound ways. Congress configures administrative procedures in the shadow of legal doctrines; moreover, courts are themselves deep in the business of procedure-configuring, as modern American administrative law amply demonstrates. The idea that the enacting Congress enjoys pride of place in regulatory administration and oversight is a normatively controversial one. Even assuming that courts and agencies ought to act as the honest agents of legislative principals, the structure and incentives of congressional preferences change over time. As a result, the enacting and current Congresses may be in conflict. While earlier PPT models presupposed that courts would enforce the legislative bargain struck by the enacting Congress, further reflection indicates that a serious normative dispute remains about whether and to what extent that enacting coalition should be preferred over the current coalition in * Chancellor's Associates Chair of Political Science, University of California, San Diego and Professor of Law, University of San Diego; Professor Emeritus of Economics and Senior Fellow, SIEPR, Stanford University; and Senior Fellow, Hoover Institution, and Ward C. Krebs Family Professor of Political Science, Stanford University. ** Minerva House Drysdale Regents Chair in Law, University of Texas School of Law. 1. Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 107 Colum. L. Rev. 1749 (2007). Professor Bressman has also written a short summation of her article. See Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 108 Colum. L. Rev. Sidebar 1 (2008), http://ww.colunbialawreview.oig/Sidebai/volune/108/ 1_Bressman.pdf. 15

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