The Dis-Integration of Administrative Law: A Comment on Shapiro

Abstract

Martin Shapiro's proposal to break "administrative discretion" down into smaller units is a step in the right direction, but it does not go far enough. In this Comment, I propose an alternative view which I call the "dis-integration" of administrative law. I do not mean that administrative law no longer exists, but rather that it is gradually becoming a more diffuse and less powerful force in the law. I first consider the general enterprise of inventing new legal concepts. (This point is not directed exclusively at Shapiro's Article, but relates to others in the Symposium as well.) I then focus on the concept of administrative discretion and its relationship to judicial review. The heart of my Comment describes what I take to be the disagreement between Shapiro and me as to the future of administrative law. Shapiro predicts both greater emphasis on "technocracy" and an expansion of court control over administrative discretion. I believe that these two tendencies conflict and that increased reliance on forms of expertise other than judge-made law will accelerate the "dis-integration" of administrative law. Finally, I consider the implications of this trend for the professional role of lawyers.