Vanderbilt Law Review

First Page



"The availability of judicial review," wrote Louis Jaffe in 1965, "is the necessary condition, psychologically, if not logically, of a system of administrative power which purports to be legitimate, or legally valid." In so writing, Jaffe suggested that the abstract beliefs that Americans have about the way government is supposed to work define the relationship between courts and the administrative state. It does not follow, logically, from the existence of administrative agencies that their actions must be policed by courts. In- stead, our beliefs about how public policy ought to be made and about which institutions are best at protecting our liberties, help dictate the relationship between the judiciary and the administrative state.

Between the end of World War II and the beginning of the 1970s, these beliefs shifted dramatically. In the immediate postwar period, academics, political pundits, and other public intellectuals subscribed to a vision of policy making that I will call interest group pluralism. The state responded to battling interest groups that were capable of representing the interests of all Americans. By the early 1960s, interest group pluralism had fallen into disrepute. Interest groups, it was argued, were unrepresentative institutions that corrupted the political process. Instead, government had to be made participatory, genuinely inclusive of and responsive to the people. This Article suggests that this change altered administrative law. The contours of administrative law shifted to accommodate this new understanding of how government worked. Our psychological requirements changed and administrative law followed suit.