Columbia Law Review
This Essay offers a specification of the rule of lawâ€™s demands of administrative law and government inspired by Professor Peter L. Straussâ€™s scholarship. It identifies five principlesâ€”authorization, notice, justification, coherence, and procedural fairnessâ€”which provide a framework for an account of the rule of lawâ€™s demands of administrative governance. Together these principles have intriguing results for the evaluation of administrative law. On the one hand, they reveal rule-of-law foundations for some contested positions, such as a restrictive view of the Presidentâ€™s power to direct subordinate officials and giving weight to an agencyâ€™s determination of the scope of its own authority. On the other hand, these rule-of-law principles expose some long-established practices as having troublesome foundations, such as the settled doctrine that agencies need not justify their choice of policymaking form. Consideration of these principles in the context of administrative law and government ultimately showsâ€”like so much of Professor Straussâ€™s workâ€”the many ways in which government under law ultimately depends on officials taking the rule of law as their highest-order commitment.
Kevin M. Stack,
An Administrative Jurisprudence: The Rule of Law in the Administrative State, 115 Columbia Law Review. 1985
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/216