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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
VOL. 108                     APRIL 29, 2008                PAGES 15-22
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
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/


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