Vol. 1 (August, 1991) Pp. 90-92

ADMINISTRATIVE LAW: RETHINKING JUDICIAL CONTROL OF BUREAUCRACY by Christopher F. Edley, Jr.. New Haven: Yale University Press, 1990. 270 pp.

Reviewed by Christine B. Harrington, Department of Politics, New York University These are interesting times for rethinking judicial control of bureaucracy, indeed for reassessing the very character of administrative law. Given who's in charge of the federal bench, conventional liberal arguments for expanding the scope of judi- cial review of administrative actions seem inappropriate. These arguments either extend more power to conservative judges to overturn progressive agency decisions, or they are rejected by conservative judges who now regularly defer to agency decisions to deregulate. The collapse of New Deal and Great Society welfare-statist theories of administration and the unraveling of liberal-legal conceptions of the role of courts in policing the administrative state, come on the heels of declining political and legal support for regulation. These new political and legal conditions command broad scholarly attention to the role of administration law in making the post-welfare state.

Christopher Edley's book is one recent important reassess- ment of administrative law. Edley, a law professor at Harvard and former White House aide in the Carter Administration and aide to the Democrats in the last presidential campaign, offers an engaging analytical treatment of administrative law doctrine. He sets out to expose what I would call the "deep structure" of doctrinal theory, theory that shapes standards for determining the scope of judicial review of agency action. Edley argues that separation of powers theory is at the heart of every administra- tive law doctrine. As he sees it, the separation of powers ethos is a "trichotomy" of institutional distinctions for constraining judicial and administrative discretion. These distinctions treat law, science and politics as separable models or paradigms used by judges to scale the scope of agency review. If the agency rule in question mainly concerns scientific data (questions of fact), deference to agencies is greater than if a question of fairness (question of law) is at stake. When a dispute is essentially over politics or congressional policy, the scope of review lies somewhere in between. Edley argues that judicial efforts to distinguish between paradigms of "adjudicatory fair- ness," "science or expertise" and "politics" attempt to serve three functions: sort out institutional roles; legitimate the power of countermajoritarian judicial review; and articulate positive and negative norms (17).

Most of the book then focuses on the conceptual flaws of the trichotomy-based theory of administrative law. Edley argues that "implicit reliance on the science-fairness-politics trichotomy must fail, on conceptual grounds, to constrain JUDICIAL discre- tion to scale the degree of deference to AGENCY discretion" (97). His evidence is tightly organized and convincing.

Edley tells us that there really is no order to the para- digms, they are not separable models of decision making, and hence if we look at case law we find numerous examples of "mis- identification". Misidentification occurs when courts choose the wrong paradigm to describe agency behavior. He gives

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examples involving recent administrative deregulation cases where the Supreme Court deferred to agency action by employing the paradigm of science rather than politics (e.g. MOTOR VEHICLE MFRS. ASS'N V. STATE FARM MUTUAL INSURANCE CO. 403 U.S. 29, 1983 and CHEVRON USA, INC. V. NRDC 467 U.S. 837, 1984).

Edley is also concerned that the trichotomy-based approach does not "foster a reasonably coherent or determinate body of principles," and hence it is "unsuccessful at disciplining judicial discretion" (73). Edley argues that because each paradigm has a set of positive and negative normative associa- tions, the analyses based on these norms are unstable; there is no way to determine which attributes to emphasize and hence how deferential to be (73). He demonstrates this point in a compari- son between two seemingly identical cases. In INDUSTRIAL UNION DEPARTMENT, AFL-CIO v. HODGSON (499 F.2d 467 (1974), the D.C. Circuit Court upheld an OSHA rule on asbestos standards on the grounds that the policy "rests in the final analysis on an essentially legislative policy judgments, rather than a factual determination, concerning the relative risks of underprotection as compared to overprotection" (87). Edley then contrasts this case with the Supreme Court's decision in the well known BEN- ZENE case where the Court emphasized the negative attributes of agency decision making and the potential abuse of discretion resulting from broad delegation.

Political scientists will find this book an artful presenta- tion of analytical structures underlying administrative law doctrine. It covers an amazing breath of doctrine including ex parte communications, efforts to distinguish rule making and adjudication, abuse of discretion, and so on. The book offers a fluid analysis of doctrine which one can rarely, if ever, say about case law studies of administrative law. I am also im- pressed with Edley's ability to link his theoretical critique of the trichotomy to actual cases, opinions and dissents.

Edley walks on thinner ground when he asserts that there is a "gap between the realities of agency decision making and the picture painted by doctrine and courts" (48) and substitutes hypotheticals for empirical research (of which, by the way, he calls for more). He cites no social science research on agency behavior; in fact, he goes so far as to say that "[n]o substan- tial work exists on the record of, or possibilities for, a direct effect of judicial review on the character and extent of scien- tific investigation by the agency (52). His argument that the trichotomy produces "descriptive inaccuracies" would be far richer and strengthened considerably if he paid some attention to the vast body of social science empirical studies on agency behavior.

Social scientists will not find Edley's claim that adminis- trative law doctrine is plagued with incoherences big news. That there is no inherent logic or order to the paradigms may still be news to a few lawyers and judges, but for those of us who have studied the regulatory bar it is clear that

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administrative law practice is all about making matches were there are none. In the end, Edley takes (and makes) the logic of trichotomy perhaps a bit too seriously.

There is no question that it is useful to show how legal opinions obscures (or in my view constructs) political reality. It is important, however, to push this sort of analysis further. Why does the Supreme Court choose to obscure (construct) politi- cal reality by employing "expertise"-- why not "politics," "fairness" or combinations of all three? In other words, we need to concern ourselves not only with how discretion (read power) is exercised in administrative law doctrine, but also with formulat- ing explanations for why certain modes of legitimacy, rationales or paradigms are employed and not others. Why has the Supreme Court chosen the path of conservative legal realism over possi- ble other interpretive frameworks that may in the end achieve the same results? Why has the current Court not adopted the kind of "social conceptualism" so characteristic of New Deal jurispru- dence?

When it comes to EXPLAINING why judges in particular cases privilege science over politics, Edley returns to the conceptual flaws within the trichotomy, thus leaving the reader with the impression that the form of legal reasoning itself explains the choice of legal reasoning. Edley says:

"My argument is not that the split votes are the result of the trichotomy alone but rather that the trichotomy helps explain the split in analytical approaches taken by the justices. The trichotomy is not the cause of the battle among judges and advocates, but it is the arsenal from which disputants arm themselves. Complex public policies are the battleground" (119).

Still, why is the weapon of "science" (to extend his military metaphor) used by certain judges at certain times in history and not others? What explains the kind of interpretive frameworks, legal ideologies, that constitute administrative law?

These are not the questions that motivate this book. Instead, Edley is interested in solving "puzzles that if not solved, make it quite likely that law will increasingly be irrelevant to modern problems of governance" (169). He worries that the "formlessness of the middle range is troubling enough, but the growing importance of extreme deference (including nonreviewability) is a crisis in administrative law: it portends an abdication of judicial responsibility for the quality of administrative government" (74). Like others in the legal profession who share his concern that law may be become irrele- vant to the administrative state, Edley's solutions to the trichotomy-based approach may contribute more to updating the conceptual framework of administrative law than transforming it.

Edley's solutions to the conceptual problems he finds with the trichotomy are "speculative" according to him. Edley's aspiration is that "sound governance should be the engine of judicial innovation and action" (129). He does not abandon the separation of powers ethos altogether, but calls for

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incremental reforms that would enable judges to better articulate the inter-relationship between law, fact and politics. One such reform is what he calls the "harder-look" review. The purpose of harder-look review, as contrasted with the hard-look standard now under attack by conservative judges, is to bring to light the role of politics in agency decision making: "The disclosure of the subjective, ideological, and electoral factors that influence the agency's decision is a crucial step toward disciplining them" (190-1).

Will "sound governance" under the "harder-look" standard achieve what efforts to establish "determinate legal norms" under the trichotomy have not? Who knows? In the imagined world of federal judges motivated by "sound governance" there seem to be few of the political and legal problems that so motivated Edley to write this book. His desire for a more probing and thoughtful judicial review is nonetheless a commendable idea.

Does this book address the issues I raised at the beginning of this review; does it rethink judicial control of bureaucracy in light of new political and legal conditions of the post- welfare state? Yes, in the following sense. Edley's work makes a significant contribution to analyzing the internal "logic" of contemporary judicial rhetoric, particularly as that rhetoric legitimizes countermajoritarian powers, such as judicial review. That alone is a major advance for those of us who, unlike Edley, are less worried about making administrative law relevant to problems of governance and more concerned with the role of administrative law ideologies in shaping state power.