About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

89 Colum. L. Rev. 369 (1989)
Law and Legislation in the Administrative State

handle is hein.journals/clr89 and id is 387 raw text is: COLUMBIA LAW REVIEW VOL. 89 APRIL 1989 NO. 3 LAW AND LEGISLATION IN THE ADMINISTRATIVE STATE Edward L. Rubin* We all live, as we all know, in an administrative state. It is shaped by explicitly adopted policies, which are generally implemented by an array of large administrative agencies. Policy formation has displaced the diffused and incremental operation of the common law as our pri- mary means of social regulation, and agencies have displaced common- law courts as the primary means by which that regulation is effectuated. All these changes have been brought about by legislation. In the pro- cess, the nature of legislation itself has undergone a major change. It no longer consists of rules that displace or supplement the common law: contemporary legislatures allocate resources, create administra- tive agencies, issue vague guidelines or general grants ofjurisdiction to those agencies, and enact a wide range of other provisions that bear little resemblance to our traditional concept of law. For these func- tions, we have no adequate theory, no general account of how such statutes should be designed and what makes them effective or ineffec- tive, desirable or undesirable. The principal reason why we lack a theory of modern legislation is that legal scholars have focused so heavily on the judiciary. They ana- lyze the work ofjudges, they address themselves to judges, they use the same terminology as judges, and quite frequently, they even think like judges.I When legal scholars turn to statutes, they tend to devote their efforts to the problem of judicial interpretation. In recent years, the study of interpretation has advanced substantially, so that it is now based on a detailed and sophisticated analysis of legislative behavior.2 * Professor of Law, University of California, Berkeley. B.A., Princeton University, 1969; J.D., Yale University, 1979. I would like to thank everyone who read drafts of this Article at various stages of its progress: Meir Dan-Cohen, Melvin Eisenberg, William Eskridge, Robert Kagan, John Kaplan, David Lieberman, Errol Meidinger, Geoffrey Miller, Paul Mishkin, Nelson Polsby, Robert Post, Kim Scheppele, Martin Shapiro, Preble Stolz, andJeremy Waldron. 1. See, e.g., M. Dan-Cohen, Rights, Persons, and Organizations: A Legal Theory for Bureaucratic Society 1-2 (1986); Rubin, The Practice and Discourse of Legal Schol- arship, 86 Mich. L. Rev. 1835, 1859-65 (1988); Tushnet, Legal Scholarship: Its Causes and Cures, 90 Yale LJ. 1205, 1207-10 (1981). 2. See, e.g., J. Hurst, Dealing with Statutes (1982); Easterbrook, The Supreme Court, 1983 Termn-Foreword: The Court and the Economic System, 98 Harv. L. Rev. 4, 42-58 (1984); Eskridge, Dynamic Statutory Interpretation, 135 U. Pa. L. Rev. 1479 (1987); Macey, Promoting Public-Regarding Legislation Through Statutory Interpreta- tion: An Interest Group Model, 86 Colum. L. Rev. 223 (1986); Popkin, The Collabora-

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most