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University of Pennsylvania Law Review

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administrative state, democracy, public accountability


Administrative Law | Law | Law and Politics


The tension between our concept of democracy and the government we actually possess is well known, despite our insistent efforts to claim that the term "democracy" accurately describes our governmental system. One area where this tension has been apparent is American constitutionalism. The conflict between our concept of democracy and the institution of judicial review became a political issue when the Supreme Court placed itself in opposition to Progressive Era and New Deal legislation. This same conflict subsequently served as a central concern of the Legal Process School, which indelibly characterized it as the "counter-majoritarian difficulty."' The more far-reaching and intractable source of tension, however, involves the existence of the administrative state. At least since the writings of John Stuart Mill, political and legal thinkers have been acutely aware that the existence of a massive, appointed, and credentialed bureaucracy that carries out the great bulk of the government's activities represents a challenge to our characterization of that government as a democracy."



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