Our understanding of administrative law owes much to Peter L. Strauss, Betts Professor of Law at Columbia Law School. To be asked to offer a few words at this Symposium in his honor is, for me, a privilege beyond measure. In thinking about his contributions and his effect on all of us in the […]
Administrative Law
I first met Peter Strauss some thirty years ago when Clark Byse invited me to join in editing the casebook that Peter had already joined at the invitation of Walter Gellhorn. Since then we’ve slept in each other’s houses, gone out to innumerable meals together, read drafts of each other’s work, and, along with […]
Peter Strauss’s The Place of Agencies in Government: Separation of Powers and the Fourth Branch reshaped contemporary thinking about the constitutionality of federal administrative government. When the article appeared in 1984, the Reagan Revolution was in full swing. Reagan’s overtly antiregulatory policy stance and his Administration’s advocacy of a highly formalist and originalist style […]
This Essay offers a specification of the rule of law’s demands of administrative law and government inspired by Professor Peter L. Strauss’s scholarship. It identifies five principles—authorization, notice, justification, coherence, and procedural fairness—which provide a framework for an account of the rule of law’s demands of administrative governance. Together these principles have intriguing results for the evaluation of administrative...
This Essay uses Peter Strauss’s work as a springboard to explore the particularly precarious position of the agencies charged with promulgating science-intensive rules (“expert agencies”) with respect to presidential oversight. Over the last three decades, agencies promulgating science-intensive rules have worked to enhance the accountability and scientific credibility of their rules by developing elaborate procedures for ensuring both...
American administrative law has long been characterized by two distinct traditions: the positivist and the process traditions. The positivist tradition emphasizes that administrative bodies are created by law and must act in accordance with the requirements of the law. The process tradition emphasizes that agencies must act in accordance with norms of reasoned decisionmaking, which...
It is often said that the legal touchstone of agency independence is whether agency heads are removable at will or only for cause. Yet this condition is neither necessary nor sufficient for operational independence. Many important agencies whose heads lack for-cause tenure protection are conventionally treated as independent, while other agencies whose heads enjoy for-cause tenure protection are by all accounts thoroughly dependent upon organized...
Peter L. Strauss, Betts Professor of Law Versions of the following Essays were presented at a Symposium in Honor of Peter L. Strauss on April 24, 2015. Professor Strauss is the Betts Professor of Law at Columbia Law School, where he has been a member of the faculty since 1971. In addition to his duties on the faculty, Professor Strauss has contributed greatly […]
Administrative agencies are strikingly absent from leading accounts of contemporary polarization. To the extent they appear, it is largely as acted-upon entities that bear the fallout from the congressional–presidential confrontations that polarization fuels, or as the tools of presidential unilateralism. This failure to incorporate administrative agencies into polarization accounts is a major omission. Agencies possess broad grants of preexisting...
The Schoolhouse Rock! cartoon version of the conventional legislative process is dead, if it was ever an accurate description in the first place. Major policy today is often the product of “unorthodox lawmaking” and “unorthodox rulemaking”—deviations from traditional process marked by frequent use of omnibus bills and multiple agency implementation; emergency statutes and regulations issued without prior comment; outsourcing...