Judicialization: The Twilight of Administrative Law

At its December, 1984 Plenary Session, the Administrative Conference of the United States devoted a part of its agenda to an exchange of ideas on the current state of administrative law and the directions in which this field is likely to move-or be pushed-in the foreseeable future. Perhaps because modern administrative agencies are such a curious admixture of the political, bureaucratic, and judicial components of government, the study of administrative law derives particular benefits from analyses and critiques that emphasize social utility as well as legal precedent. In no other area of the law do the current political agenda and social climate affect so directly both the legal process and its end products. The deliberately provocative essay that follows was written especially for this year\u27s Administrative Law Issue by Loren A. Smith, Chairman of the Administrative Conference. Mr. Smith argues that the current level of judicialization and overproceduralization of the administrative process is a symptom of a fundamental dysfunction. He reminds us that formal methodologies cannot by themselves resolve the difficult issues that inevitably arise in the context of those important social programs placed under the auspices of the administrative agencies and argues that an infatuation with procedural safeguards-the traditional focus of administrative law studies-is counterproductive insofar as it has the effect of diverting attention away from critical substantive problems. Hard looks, Mr. Smith concludes, may be a frustrated body politic\u27s way of avoiding hard choices, and he calls for a renewed recognition of the essentially political-and hence fully accountable-nature of the federal administrative process