Pojanowski, “Neoclassical Administrative Law”

On the reading list for this week’s installment of the Administrative Law & Governance colloquium was Jeffrey A Pojanowski’s article, “Neoclassical Administrative Law“. Here is the abstract:

This Article introduces an approach to administrative law that reconciles a more formalist, classical understanding of law and its supremacy with the contemporary administrative state. Courts adopting this approach, which I call “neoclassical administrative law,” are skeptical of judicial deference on questions of law, tend to give more leeway to agencies on questions of policy, and attend more closely to statutes governing administrative procedure than contemporary doctrine does. As a result, neoclassical administrative law finds a place for both legislative supremacy and the rule of law within the administrative state, without subordinating either of those central values to the other. Such an approach reconciles traditional notions of the judicial role and separation of powers within the administrative state that Congress has chosen to construct and provides a clearer, more appealing allocation of responsibilities between courts and agencies. This theory is “classical” in its defense of the autonomy of law and legal reasoning, separation of powers, and the supremacy of law. These commitments distinguish it from theorists that would have courts make a substantial retreat in administrative law. It is “new” in that, unlike other more classical critiques of contemporary administrative law, it seeks to integrate those more formalist commitments with the administrative state we have today — and will have for the foreseeable future.

Professor Pojanowski distinguishes between “administrative supremacists”, who (broadly speaking) think the administrative state is a vital part of the contemporary legal-political firmanent, “administrative sceptics” who (in the United States at least) doubt the constitutional and moral legitimacy of administrative power and – in between the two – “administrative pragmatists” who (my formulation) have a Goldilocks approach to the subject, recognizing some administrative supremacy but tempered with some administrative scepticism to arrive at a doctrinal mix that is ‘just right’. This probably describes the current Canadian approach, as set out in Vavilov.

Pojanowski describes a fourth camp, that of the neoclassicists. Their jurisprudential commitments are three-fold:

(a) belief in the autonomy and determinacy of legal craft; (b) the priority of original, positive law over judicial doctrine; and (c) hesitance to engage in judicial deconstruction of the administrative state through constitutional law (p. 895).

In concrete terms:

This approach is skeptical of judicial deference on questions of law but takes a much lighter touch on review of agencies’ procedural and policymaking choices. Put another way, it combines the skeptic’s understanding of the judicial role on questions of law with the supremacist’s approach to questions of discretion and policymaking. Like administrative pragmatism, it seeks to find an equal place for politically responsible policymaking and the rule of law in the administrative state. Yet it rejects the pragmatist’s blurring of the line between law and policy, drawing instead a sharper division of responsibility between courts and administrative agencies. Neoclassical administrative law recapitulates Dicey’s sharp distinction between rule of law and legislative supremacy but nests it within an administrative state that serves as a deputized lawmaker (at p. 883).

Much turns, in this vision, on establishing and maintaining clear lines of demarcation between law on the one hand and policy, fact and discretion on the other.

Pojanowski sees the law/policy distinction as having broken down under assault from the legal realists, but I wonder whether there is not something else going on here, which is not all about whether one is a legal realist or not.

Pojanowski’s taxonomy put me in mind of Martin Loughlin’s classic article, “Procedural Fairness: A Study of the Crisis in Administrative Law Theory” (1978) 28 University of Toronto Law Journal 215. Loughlin’s topic was the law of procedural fairness but his analysis is of broader applicability (see generally David Dyzenhaus & Evan Fox-Decent, “Rethinking the Process/Substance Distinction: Baker v. Canada” (2001) 51 University of Toronto Law Journal 193).

Loughlin distinguished between three different approaches: Active formalism, inactive formalism and active informalism. The active/inactive distinction relates to what Pojanowski describes as “mood”, an attitude of vigilance or restraint and the formal/informal distincton relates to one’s relative tolerance for categorical analysis on the one hand or contextual analysis on the other.

So an active formalist will rely on categorical distinctions and use them to intervene on a regular basis, with little regard for the supposed expertise of the decision maker. We could imagine an inactive informalist at the other end of the spectrum, whose approach is almost entirely contextual and allied to a deferential mood.

In between, one has active informalists — a pretty good description of Vavilovian reasonableness review, which is highly contextual (and thus informal) but also robust (and thus active) — and inactive formalists. I think Pojanowski’s neoclassicism is closest to inactive formalism. He shares with formalists an appreciation for the merits of a distinction between law and policy but is somewhat nervous — more so than, say, Justice Thomas or Gorsuch, or Canadian judges of the 1970s — about second-guessing too many agency policy choices; he would insist on the application of the principles of statutory interpretation to confine the space for administrative agency action but not so much that the space would disappear altogether. As Dyzenhaus and Fox-Decent described it, inactive formalists “resign themselves to the fact that, given Dicey’s understanding of the rule of law, the administrative state is not internally governed by the rule of law, so that the best they can do is police the outer limits of its operations”, especially on questions of law and jurisdictional questions (p. 198). This is a pretty accurate description of Pojanowski’s approach (though obviously it does not address the US Constitution, which in American administrative law looms very large indeed).

Whatever about the relative merits of these competing taxonomies, Pojanowski’s article is a fine, readable analysis of contemporary American administrative law, distinguished by detailed references to English and Canadian material typically conspicuous by their absence from US scholarship.

This content has been updated on February 26, 2020 at 11:35.