Jodi L. Short (UC Law, San Francisco) has posted THE MORAL TURN IN ADMINISTRATIVE LAW on SSRN. Here is the abstract:
In a field notorious for its unrelenting focus on proceduralism, institutionalism and technocracy, talk of morality is suddenly everywhere. Scholars increasingly frame administrative law issues in frankly substantive moral terms. Courts are openly displaying an interest in the moral dimensions of administrative law and regulation. This Article contends that we should understand these trends as a “moral turn” in administrative law.
The project has three main aims. First, it calls attention to a scholarly trend that is intellectually thrilling: it stretches the boundaries of how we typically think about administrative law and practice and goes beyond well-worn critiques of neoliberal administration to offer the prospect of a positive, alternative theory. Perhaps more importantly, the moral turn seems (more than traditional scholarly forms) to meet the moment of existential crisis in the administrative state by clarifying—in substance and in tone—what is at stake. Second, this Article seeks to advance the moral turn by sparking a productive dialogue across varied strands of morally inflected scholarship. Although scholars advancing moral theories of administration are engaged in fundamentally similar projects, these similarities have not previously been recognized and, for the most part, these scholars are not openly talking to one another. This lack of comprehensive dialogue has skewed the conversation toward a handful of conservative scholars who have aggressively staked a claim to the terrain of moral administration, belying a much broader interest in the morality of administration that defies easy ideological categorization. Third, this Article develops a framework to foster and shape an ongoing dialogue on moral administration and to normatively assess the theories it yields.
This project is particularly timely at an historical moment when antidemocratic theories, movements, and politicians are gaining traction at home and abroad by advancing moral certainties. While moral governance projects contain much promise, they also carry dangers. This Article takes seriously both the promise and perils of theories of moral administration and provides tools to interrogate them.
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