Article Title

Common Law and Statute Law in Administrative Law





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The largely statutory appearance of U.S. administrative law should not be surprising in light of the existence of the federal Administrative Procedure Act of 1946 (APA). The APA, including its additions and amendments, is a relatively comprehensive guide to much of administrative law in the United States. It contains the procedures agencies are supposed to follow in both rulemaking and adjudication and provisions on the availability and scope of judicial review of agency action. As amended, it includes open meeting and open file requirements as well as procedures for negotiated rulemaking and legislative review of agency rules. Add in the generally held view that federal courts should not make common law but should act only when and how they are statutorily authorized to act, and it is understandable that administrative law takes on a strong statutory appearance.

Thus, although common law pops up explicitly on occasion in the odd quarter of administrative law, by and large the law of judicial review appears to be statutory and it is understood that way by most lawyers. Note the word “appears.” Scratch below the surface, and the federal courts may not actually behave all that differently than court systems with an openly acknowledged common law tradition in administrative law. While the federal courts have always been statutorily authorized to employ the writs that English courts used in the common law of judicial review, the courts have, since the enactment of the APA, been reluctant to be open about their use of common law in the administrative law arena, especially when a statute contains an answer or even the germ of an answer. Even when the federal courts rely on pre-APA case law or principles, courts usually filter this law through the lens of the APA.

The purpose of this Article is to uncover the statutory veneer of federal administrative law and reveal ways in which federal courts behave like common law courts, creating administrative law based on principles and policies that may or may not be consistent with the language, structure, and history of the APA and other relevant provisions. I will also highlight areas in which the Supreme Court has required a more statutory focus as a matter of contrast with the common law aspects of administrative law to illustrate that the Court has not provided, or even attempted to provide, a principled justification for its continued use of administrative common law. Last, this Article shows that the courts have not provided a method for choosing between a statutory or common law focus in any particular doctrinal area.

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