American Administrative Law Under Siege: Is Germany a Model?

The American regulatory state is under attack. Economists criticize the irrationality of substantive policies. ¹ Political scientists attack administrative policymaking and implementation as cumbersome, disjointed, and adversarial. ² Law professors argue that the administrative process is legalistic, time-consuming, and ineffective. ³ Commentators, including some now on the federal bench, argue that judicial scrutiny has induced agencies to make fewer rules and to seek less accountable ways of making policy. ⁴ They urge the courts to defer more frequently to agency decisions. ⁵ The criticisms have built to such a crescendo that the system seems in crisis.