Yale Law Journal
To read the voluminous literature on administrative law is to inhabit a world focused almost exclusively on federal agencies. This myopic view, however, ignores the wide array of administrative bodies that make and implement policy at the local-government level. The administrative law that emerges from the vast subterranean regulatory state operating within cities, suburbs, towns, and counties has gone largely unexamined. Not only are scholars ignoring a key area of governance, but courts have similarly failed to develop an administrative jurisprudence that recognizes what is distinctive about local agencies. The underlying justifications for core administrative law doctrines at the federal level, such as deference to agency expertise and respect for separation of powers, must be adapted for local contexts in which mayors can sit on city councils, agencies may operate with few clear procedural constraints, and ordinary citizens can play a direct role in determining policy. To remedy these gaps in the literature and the doctrine, this Article makes three contributions. First, it offers a detailed descriptive account of local administration, outlining domains of local agency action, the governmental structures that define those agencies, and practical details of local agency operation. The Article then draws from this empirical grounding to identify particularly salient factors that can more transparently inform judicial review of a variety of local agency actions, from statutory interpretation to substantive policy-making to enforcement and licensing. These factors include the particular, and varied, nature of local-government structures, the tension between informality and procedural legitimacy within local administration, the mottled interplay of public and private spheres in local governance, and local-agency expertise that reflects local knowledge. This localist perspective, finally, has direct relevance to core scholarly debates in both local government law and administrative law. An understanding of local administration adds a layer of internal complexity to questions of local-government authority and identity, reorienting discussions about democratic accountability and experimentalism. It likewise holds the promise of deepening administrative jurisprudence with a perspective that reaches across the entire range of our vertical federalism. In short, the world of local agencies opens a window for the study of an important, yet underappreciated, set of institutions. Calling attention to these agencies will ultimately foster a new discourse about administrative law for local-government scholars and a broader understanding of governance for scholars of administrative law.
Nestor M. Davidson,
Localist Administrative Law, 126 Yale L.J. 564
Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/705