Sidney A. Shapiro and Richard W. Murphy (Wake Forest University School of Law and William Mitchell College of Law) have posted Eight Things Americans Can't Figure Out About Controlling Administrative Power (American Law Review, Vol. 60, 2008) on SSRN. Here is the abstract:
Administrative law is difficult because it reflects a tension between two fundamental impulses that pull in opposite directions. Effective government requires the allocation of discretionary power to agency officials, but for agency governance to be legitimate, administrative law must find ways to mediate this power, but not too much, robbing agencies of their effectiveness. We assume that other polities face similar difficulties and that the project of comparative administrative law therefore may suggest how to clarify and reform American administrative law. Written for a comparative administrative law conference, this Essay tries to advance cross-understanding by discussing issues of American administrative law that have been especially troublesome and contentious. Our discussion of eight things Americans cannot figure out about controlling administrative power leads us to conclude: (a) it is not clear which elected branch is in charge; (b) efforts to democratize policy formation are deeply problematic; and (c) administrative policy is hopelessly conflicted with regard to the scope of judicial power to tell agencies what to do.