Christopher J. Walker (Ohio State University (OSU) – Michael E. Moritz College of Law) has posted Administrative Law Without Courts (UCLA Law Review, Vol. 65, 2018 Forthcoming) on SSRN. Here is the abstract:
As part of the UCLA Law Review’s Safeguards of Our Constitutional Republic Symposium, this Article argues that it is a mistake to fixate on courts as the core safeguard in the modern administrative state. So much of administrative law happens without courts. Put differently, federal agencies regulate us in many meaningful, and sometimes frightening, ways that either evade judicial review entirely or are at least substantially insulated from such review. This Article provides a taxonomy of the phenomenon. It sketches out seven categories of such agency action, drawing on examples from both the Obama and Trump Administrations and highlighting some of the relevant scholarship. The Article concludes with a few observations concerning the implications of administrative law without courts for administrative law theory and doctrine and a call for more scholarly attention.