Monday, May 7, 2007

Aman on Administrative Law in a Global Era

Alfred C. Aman, Jr., (Indiana, incoming Dean at Suffolk) has just posted on SSRN an article Administrative Law in a Global Era: Progress, Deregulatory Change and the Rise of the Administrative Presidency. This is an older piece, appearing in the Cornell Law Review in 1988. Because Aman is so interesting, and because this piece may have been missed by legal historians the first time around, appearing before most legal historians embraced the global turn in American history, I thought posting it would be helpful.

One question to consider: Aman contrasts what he calls the "Global Deregulatory Era" from 1981 on, with earlier "New Deal" and "Post-New Deal" regulatory eras (see n. 12). It is important to look for global influences on American law in the years before "globalization" became the contemporary watch-word. For just one effort to set the New Deal-era in a global context, see David M. Bixby, "The Roosevelt Court, Democratic Ideology, and Minority Rights: Another Look at United States v. Classic," 90 Yale Law Journal 741 (1981).

Here's Aman's abstract:
This article examines how the U.S. public law system adapted to change in the 1980s and how the regulatory structures and discourses of the past were being transformed by the global realities of the present. Tracing the evolution of administrative law during the regulatory eras of the New Deal and the environmental period of the 1960s and ‘70s as well as the global deregulatory era that began, in earnest, in the 1980s with the Reagan presidency, it illuminates key trends in the interpretation of constitutional and administrative law. In so doing, it provides insights into the process of legal change and the discourses that continue to shape our legal order today.
The article first analyzes the legal and political contexts of the New Deal and the environmental eras by focusing on two judicial review doctrines that typify them - the doctrine of deference in the New Deal and the hard look doctrine in the environmental era. It argues that these two approaches to judicial review were products of very different conceptions of progress and change in those periods and explains how courts chose between the two approaches when they reviewed agency deregulation of rules emanating from environmental health and safety concerns. Focusing on the emergence of the doctrine of presidential deference, it then examines agency deregulation and increased executive power as responses to increased global competition and the changing political and economic perspectives it requires. It goes on to analyze how emerging global environmental and developmental issues tempered domestic regulatory and deregulatory discourses based on the demands of global competition.

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