Delegation, Risk Diversification, and the Properly Political Project of Administrative Law
Responding to Matthew C. Stephenson, Legislative Allocation of Delegated Power: Uncertainty, Risk, and the Choice Between Agencies and Courts , 119 Harv. L. Rev. 1035 (2006)
Professor Matthew Stephenson’s fascinating article provides (with apologies to Robert Bork) an intellectual feast for those scholars interested and invested in the emerging positive political theory (PPT) of legislative decisionmaking and bureaucratic performance. Perhaps less obviously, there is a feast here as well for anyone intrigued by the perennial puzzles of modern administrative law. My objective in this short response is two-fold: First, I describe, using the same basic analytical tools upon which Professor Stephenson relies for his argument, some of the important ways in which the agency-courts-legislature model is incomplete. Second, I use Professor Stephenson’s illuminating model as a springboard to considering some of the potential implications of his analysis for modern administrative law.
119 Harv. L. Rev. F. 202 (2006) | DOWNLOAD PDF
