Copyright (c) 2003 New York University Law Review
New York University Law Review
ESSAY: ADMINISTRATIVE LAW IN THE TWENTY-FIRST CENTURY
78 N.Y.U.L. Rev. 437
Richard B. Stewart*
Introduction and History
My canvas is dauntingly broad, and I must perforce paint with broad strokes. I will focus on administrative law in relation to government regulation, broadly understood. I will first briefly summarize the central elements of administrative law in the United States over the past century and show how they carry forward, reconfigured, into our current era. I will then assess the emerging new methods for achieving regulatory goals in the face of growing administrative fatigue and the implications of those new methods for administrative law. I will conclude with a precis of the emerging international aspects of administrative law.
The Rise of Administrative Regulation
The century just concluded witnessed a dramatic rise in the scope and intensity of administrative regulation. Markets and other complex forms of private ordering generate enormous benefits, but also market inefficiencies and failures, abuses of economic power and position, environmental degradation, safety hazards, economic insecurity, dependency, and other systemic ills. In response to the demonstrated inadequacies of private and criminal law, legislatures have adopted extensive administrative programs to prevent these ills. Such programs resort primarily to the command-and-control method of regulation, under which government imposes detailed prohibitions or requirements on the conduct of individual actors: A bank must have certain minimum capital; a power plant may not emit more than a specified amount of particulate matter air pollution; we have to separate paper and metal from our other trash.
Today, almost every area of activity is subject to government ...
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