Jim Rossi (Florida State University – College of Law) has posted Of Dialogue — and Democracy — in Administrative Law (Columbia Law Review Sidebar, 2012) on SSRN. Here is the abstract:
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This brief Response to Professor Emily Hammond Meazell's article, Deference and Dialogue in Administrative Law, 111 Columbia Law Review 1722 (2011), evaluates the limitations of dialogue as a way of understanding the role of judicial review in administrative law. As Professor Meazell’s article illustrates, dialogue’s descriptive traction in explaining substantive judicial review in administrative law may be strongest in the serial litigation context, where an agency position is challenged repeatedly over a drawn out time period. However, Part I of this Response argues that a dialogic account of judicial review also suffers from a reviewability blind spot, and fails explain established doctrines of administrative law that call into question whether a dialogue between a court and agency is even worth having in the first instance. Part II explores how dialogue, when it does occur, is not limited to a cozy court‐agency conversation. Especially in the context of serial litigation, dialogue can involve other institutions; to the extent multiple congresses and presidents may also be aware of issues being reviewed by courts, opportunities for political intervention may play as significant a role to an agency as judicial review. The Response concludes by highlighting the need for dialogic approaches to administrative law to address politics and democracy, as well as courts and agencies.