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47 Admin. L. Rev. 1 (1995)
Shooting the Piano Player - Justice Scalia and Administrative Law

handle is hein.journals/admin47 and id is 11 raw text is: SHOOTING THE PIANO PLAYER?
JUSTICE SCALIA AND
ADMINISTRATIVE LAW
Bernard Schwartz *
1 1  A   dministrative law, says Antonin Scalia, is not for sissies.' That is
LIcertainly true of Justice Scalia's administrative law, for it questions
many of the basic assumptions upon which our administrative law has been based.
In all too many aspects of the subject, the Scalia approach differs from that followed
by most administrative lawyers.
Justice Scalia himself is the first administrative law professor to be elevated to
Olympus since Felix Frankfurter. Scalia has not, however, confined himself to
the relatively restrained judicial role assumed by his predecessor.' Instead, the
Justice has been an administrative law activist, not hesitating to import his own
academic theories into our public law. In particular, he adheres to an approach
far more doctrinaire than that followed by his colleagues. But if Justice Scalia
seems unduly rigid in his approach, at least he is always interesting in his opinions.
This should make him the administrative law professoriate's favorite Justice. For
both those who agree and those who disagree with them, the Scalia opinions
should provide grist for the academic mills for years to come.
I. Administrative Power
A. THE ADMINISTRATIVE AGENCY
Justice Scalia once began a lecture on administrative law, You should lean
back, clutch the sides of your chairs, and steel yourselves for a pretty dull lecture. 3
Whatever else it may be, the Justice's administrative law is anything but dull.
Justice Scalia apparently believes in almost everything that most administrative
* Chapman Distinguished Professor of Law, The University of Tulsa.
This article has made use of unpublished material, including draft opinions, conference statements,
letters, and memoranda. Those which do not have a stated source are in the Thurgood Marshall
papers, Library of Congress. Copies are in the possession of the Administrative Law Review.
1. Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L.J. 511,
511.
2. See Bernard Schwartz, The Administrative World of Mr. Justice Frankfurter, 59 YALE L.J. 1228,
1228 (1950).
3. Scalia, supra note 1, at 511.

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