The Lost World of Administrative Law


  • Daniel A. Farber University of California
  • Anne Joseph O'Connell University of California



administrative law , administrative procedure act , OIRA , cost benefit analysis , judicial review


The reality of the modern administrative state diverges considerably from the series of assumptions underlying the Administrative Procedure Act (APA) and classic judicial decisions that followed the APA reviewing agency actions. Those assumptions call for statutory directives to be implemented by one agency led by Senate-confirmed presidential appointees with decision-making authority. The implementation (in the form of a discrete action) is presumed to be through statutorily mandated procedures and criteria, with judicial review to determine whether the reasons given by the agency at the time of its action match the delegated directions. This is the lost world of administrative law, though it is what students largely still learn.

Today, there are often statutory and executive directives to be implemented by multiple agencies often missing confirmed leaders, where ultimate decision-making authority may rest outside of those agencies. The process of implementation is also through mandates in both statutes and executive orders, where the final result faces limited, if any, oversight by the courts. The mismatch has consequences for the legitimacy and efficacy of the federal bureaucracy: some positive, many negative. Because we do not think a return to the lost world is possible or perhaps even desirable, we propose some possible reforms in all three branches of the federal government to strengthen the match between current realities and administrative law and to further administrative law's objectives of transparency, rule of law, and reasoned implementation of statutory mandates. We also hope that the proposed reforms can help foster the public interest goals of modern regulation, such as environmental quality or financial stability.

We realize that many scholars and probably at least some judges are aware that formal administrative procedures, official records, and judicial review are only part of the dynamics of administrative governance. But administrative law, as developed by the courts and in governing statutes, has not meaningfully confronted the contemporary realities of the administrative state. It thus risks becoming irrelevant to the quality of governance.


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Biografia do Autor

Daniel A. Farber, University of California

Sho Sato Professor of Law, University of California, Berkeley.

Anne Joseph O'Connell, University of California

Associate Dean for Faculty Development and Research and Professor of Law, University of California, Berkeley. We would like to thank Eric Biber, Lisa Bressman, Christopher Edley, Jr., Jacob Gersen, Lisa Heinzerling, Aziz Huq, David Markell, Mark Seidenfeld, Martin Shapiro, and workshop participants at Berkeley Law, Florida State University School of Law, Southwestern Law School, and the University of Chicago Law School for feedback on the project, and I-Wei Wang for excellent assistance in tracking down early modern administrative law materials.




Como Citar

Farber, D. A., & O’Connell, A. J. (2023). The Lost World of Administrative Law. Revista De Direito Administrativo, 282(3), 25–83.