Proposals for Reforming the Administrative Procedure Act: Globalization, Democracy and the Furtherance of a Global Public Interest

Abstract

On February 3, 1999, Dean Alfred C. Aman, Jr. delivered Third Annual Snyder Lecture at Cambridge University. This lecture recently has been published in 6 Ind. J. of Global Legal Stud. 397. It examines Administrative Law Reform, and is part of a larger work now in progress, dealing with APA and possible legislative approaches to Administrative Law Reform. This lecture builds on theoretical perspectives on globalization and their implications for administrative and constitutional law, as set forth in Aman, The Globalizing State: A Future-Oriented Perspective on Public/Private Distinction, Federalism, and Democracy, 31 Vand. J. Trans. Law 719 (1998). The lecture sets forth four different conceptions of globalization -- comparative/international model, globalization as Americanization, globalization as denationalization, and what author calls the state. With these frameworks in mind, lecture then examines Administrative Law Reform, arguing that for years, U.S. public law debates have been dominated by question of which public institution should be responsible for certain kinds of policymaking -- court, legislature or administrative agency. The democracy problem inherent in globalization, however, is more fundamental. It involves more than a debate over which public institution is best suited to decide certain kinds of legal issues. What is at stake when globalizing state delegates power to market and various non-State private actors often is a far more striking choice between some democracy (or participation) and none at all. The lecture then considers APA reforms in three contexts: (1) extension of APA to certain private entities; (2) creation of greater transparency and opportunities for participation in processes of contracting out governmental functions to private entities; and (3) need for a global impact statement in certain kinds of rulemaking proceedings. The lecture concludes that APA of future should include within its scope private entities carrying out public functions, a requirement that global implications of domestic policies be considered if not coordinated with international strategies to deal with global problems, and an evolving sense of how public participation and transparency might be facilitated by very technologies that are raising new issues, given their undeniably global characteristics.