Document Type
Article
Publication Title
Vanderbilt Law Review
Publication Date
2014
ISSN
0042-2533
Page Number
1
Keywords
administrative law, adaptive management theory, Administrative Procedure Act
Disciplines
Administrative Law | Law
Abstract
Administrative law needs to adapt to adaptive management. Adaptive management is a structured decision-making method the core of which is a multi-step iterative process for adjusting management measures to changing circumstances or new information about the effectiveness of prior measures or the system being managed. It has been identified as a necessary or best practices component of regulation in a broad range of fields, including drug and medical device warnings, financial system regulation, social welfare programs, and natural resources management. Nevertheless, many of the agency decisions advancing these policies remain subject to the requirements of either the federal Administrative Procedure Act or the states parallel statutes. Adaptive management theorists have identified several features of such administrative law requirements” especially public participation, judicial review, and finality” as posing barriers to true adaptive management, but they have put forward no reform proposals. This Article represents the first effort in adaptive management theory to go beyond complaining about the handcuffs administrative law puts on adaptive management and to suggest a solution. The Article begins by explaining the theory and limits of adaptive management to emphasize that it is not appropriate for all or even most agency decision making. For its appropriate applications, however, we argue that conventional administrative law has unnecessarily shackled effective use of adaptive management. We show that the core values of administrative law can be implemented in ways that much better allow for adaptive management through a specialized adaptive management track of administrative procedures. Going further, we propose and explain draft model legislation that would create such a track for the specific types of agency decision making that could benefit from adaptive management.
Recommended Citation
J.B. Ruhl and Robin Craig,
Designing Administrative Law for Adaptive Management, 67 Vanderbilt Law Review. 1
(2014)
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/463