Good Governance at the Supranational Scale: Globalizing Administrative Law

Abstract

This Article examines the tension between the demonstrable need for structured international cooperation in a world of interdependence and the political strain that arises whenever policymaking authority is lodged in global institutions. It argues that the tools of administrative law, which have been used to legitimate regulatory decisionmaking in the domestic context, should be deployed more systematically when policymaking is undertaken at the international level. While acknowledging the inevitable lack of democratic underpinnings for supranational governance, this Article highlights a series of other bases for legitimacy: expertise and the ability to promote social welfare; the order and stability provided by the rule of law; checks and balances; structured deliberation; and, most notably, the institutional design of the policymaking process as structured by principles and practices of administrative law. In developing the logic for procedural legitimacy as a foundation for good governance at the supranational scale, this Article advances a taxonomy of possible global administrative law tools. It then evaluates against this template of good governance procedures some existing decisionmaking procedures in the international trade, public health, and environmental policy regimes. The core conclusion is this: Even if supranational governance is limited and hampered by divergent traditions, cultures, and political preferences, developing a baseline set of administrative law tools and practices will strengthen whatever supranational policymaking is undertaken.