Matthew B. Lawrence (Emory University School of Law) has posted Antifragile “Administrative Law”: The Systemic Effects of Executive Lawbreaking on SSRN. Here is the abstract:
Lawbreaking by executive branch actors can weaken democratic capacity by undermining the legitimacy of the administrative state, eroding the rule of law, driving expert civil servants from the workforce, shifting blame for legislative and executive inaction to the judiciary, and supporting a deconstructive attorney workforce skilled only in combatting agency action. From the perspective of longstanding movements that oppose democratic capacity, these systemic effects favor the use of lawbreaking as a deconstructive tool, a reason to err on the side of illegality while in power or even deliberately act without regard for law. In a word, the tendency of executive lawbreaking to weaken democratic capacity makes administrative law fragile; the more administrative laws are broken, the weaker the administrative state becomes.
It is possible to counteract the usefulness of lawbreaking as a deconstructive tool because lawbreaking by executive branch actors need not necessarily weaken democratic capacity. Executive lawbreaking can also strengthen democratic capacity by surfacing narratives about the benefits of administration, supporting a constructive attorney workforce, and facilitating constructive organizing. By harnessing the potential for executive lawbreaking to strengthen democratic capacity, institutional designers could make administrative law antifragile; the more administrative laws are broken, the stronger the administrative state becomes.
Those writing laws, crafting doctrines, or developing legal institutions with the goal of building durable democratic capacity must be realistic and work on the assumption that state power will be held, at one point or another, by those who would prefer to dismantle the administrative state. To build durable democratic capacity despite this inevitability, designers should avoid legal rules and institutions that enhance executive lawbreaking’s deconstructive effects. To that end, scholars and teachers hoping to build democratic capacity should avoid organizing scholarly inquiry and law school classes into trans-substantive, juris-centric fields like “administrative law” that create a deconstructive attorney workforce with the ability to identify and address the harms of state power but not to help devise and construct programs to secure its benefits in particular substantive domains. Instead, designers should embrace legal rules and institutions that lend antifragility to administrative law, including by expanding the availability of fee-shifting for non-profit entities under the Equal Access to Justice Act, integrating “administrative law” rules in substantively-focused courses rather than vice versa, leaning into the consideration of reliance interests in arbitrary and capricious review, and leveraging associational standing requirements that empower substantively engaged interest groups.
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