Foreword: Embracing Administrative Common Law

Abstract

This article begins with the descriptive claim that much of administrative law is really administrative common law: doctrines and requirements that are largely judicially created, as opposed to those specified by Congress, the President, or individual agencies. To be sure, governing statutes exert some constraining force on judicial creativity, but the primary basis of these judge-fashioned doctrines lies in judicial conceptions of appropriate institutional roles, along with pragmatic and normative concerns, that are frequently constitutionally infused and developed incrementally through precedent. Yet the judicially created character of administrative law is rarely acknowledged by courts - and to the extent courts do acknowledge judicial development of administrative law, they usually condemn the practice.Turning from descriptive to more normative, the article argues for explicit judicial recognition and acceptance of administrative common law. Administrative common law serves an important function in our separation of powers system, a system that makes it difficult for Congress or the President to oust the courts as developers of administrative law. In particular, the institutional features of administrative law - the role it plays in structuring relationships between different government institutions and the requirements it imposes on how agencies operate - create strong pressures on courts to play a lawmaking role. Moreover, courts have employed administrative common law as a central mechanism through which to ameliorate the constitutional tensions raised by the modern administrative state. These features combine to make administrative common law inevitable. At the same time, administrative common law represents a legitimate instance of judicial lawmaking. The very same factors that support federal common law in other instances - unique federal interests at stake, a need for uniformity, and the impropriety of relying on state law - dominate federal administrative contexts. Much administrative common law also has a statutory basis to which it is at least loosely tethered, and embodies core constitutional values. As important, openly acknowledging the role that judicial lawmaking plays is critical to clarifying and improving administrative law.