Jeffrey A. Pojanowski (Notre Dame Law School) has posted Neoclassical Administrative Law (Harvard Law Review, Vol. 133, 2019, forthcoming) (54 Pages) on SSRN. Here is the abstract:
This article introduces an approach to administrative law that reconciles a more formalist, classical understanding of law and its supremacy with the contemporary administrative state. Courts adopting this approach, which I call “neoclassical administrative law,” are skeptical of judicial deference on questions of law, inclined to give more leeway to agencies on questions of policy, and attend more closely to statutes governing administrative procedure than contemporary doctrine. This theory is “classical” in its defense of the autonomy of law and legal reasoning, separation of powers, and the supremacy of law. These commitments distinguish it from theorists who would have courts make a substantial retreat in administrative law. It is “new” in that, unlike other more classical critics of contemporary administrative law, it seeks to integrate those more formal commitments with the administrative state we have today—and will have for the foreseeable future.
Posted at 6:10 AM