The Procedure Fetish
Nicholas Bagley*
The strict procedural rules that characterize modern administrative law are said to be necessary to sustain the fragile legitimacy of a powerful and constitutionally suspect administrative state. We are likewise told that they are essential to public accountability because they prevent factional interests from capturing agencies. Yet the legitimacy-and-accountability narrative at the heart of administrative law is both overdrawn and harmful. Procedural rules have a role to play in preserving legitimacy and discouraging capture, but they advance those goals more obliquely than is commonly assumed and may exacerbate the very problems they aim to fix. This Article aims to draw into question the administrative lawyer’s instinctive faith in procedure, to reorient discussion to the trade-offs at the heart of any system designed to structure government action, and to soften resistance to a reform agenda that would undo counterproductive procedural rules. Administrative law could achieve more by doing less.
* Professor of Law, University of Michigan Law School. For their comments, I’d like to thank Kate Andrias, Bernadette Atuahene, Jonathan Bruno, Kristina Daugirdas, Dan Dea- con, Scott Hershovitz, Noah Hall, Don Herzog, Jeremy Kessler, Nina Mendelson, Jon Michaels, Julian Mortenson, Anne Joseph O’Connell, Will Ortman, Nick Parrillo, David Pozen, Kevin Stack, Chris Walker, and Jonathan Weinberg. Immense thanks too to Joe Con- don, M Moore, Anree Little, and Hailey Suggs for expert research assistance.
