Can the Administrative State be Tamed

Abstract

The modern American administrative state is a regime of lawmaking by ad hoc managed democracy. It is the product of modern affluence and technology—which have reduced political transactions costs, increased demands for government intervention, and enabled Congress to supply the increased demands by transferring lawmaking to executive agencies. Specialized, hierarchical agencies can employ communication and information technology much more thoroughly than a conflict-riven legislature, and thereby generate law on a much larger scale. Today’s administrative state departs from traditional rule-of-law values in important respects; understanding its roots in affluence and technology points to both constraints and opportunities for legal reformers. 1. I NTRODUCTION