Our Parochial Administrative Law

<p>&nbsp; &nbsp; &nbsp;&nbsp;&nbsp;Going back to the birth of modern administrative law in America reveals something striking. The pioneers of the field and many who followed in their footsteps weren’t trying to fashion a body of law for a rapidly expanding administrative state by being exclusively self-referential—that is, by focusing only on our own idiosyncratic experiences and needs in the United States. Rather, they were consistently looking at what we might learn from other nations as well. In short, modern administrative law began in America very much as an exercise in <i>comparative</i> or <i>transnational law</i>. Fast forward to today, and this intense comparative engagement has almost vanished from the administrative law scene. It lives, but only on the very margins of the scholarly and policy debate without any real purchase or impact. What’s more, even when administrative law comparison does suddenly appear in quite prominent places, its employment seems so problematic that it actually gives the entire enterprise a bad rap. For instance, in his dissent from a denial of cert in <i>Buffington v. McDonough</i> from the October 2022 Term, Justice Gorsuch chastised his colleagues for refusing to reevaluate <i>Chevron</i> deference among other things by noting simply that other countries “declined to adopt” something similar. To be sure, Justice Gorsuch’s comparative statement seems superficially true. But it suffers from many of the familiar failures of irresponsible comparative inference—including by being shallow, acontextual, and selective. In fact, Justice Gorsuch’s comparativism in <i>Buffington</i> may not only be flawed but also what comparativists might call “abusive”—that is, it was done in the service of gradually undermining what our constitutionally legitimate administrative state presently seems to require.</p> <p>This Article calls for reviving comparative administrative law as a much more meaningful enterprise in our system, arguing that its many benefits should cause domestic scholars to engage in it more and judges, litigators, and policymakers to not be reluctant to use it as well. In the process, this Article also suggests how precisely to approach comparative administrative law in useful and productive—rather than shallow and abusive—ways that would avoid the kind of pitfalls characteristic of Justice Gorsuch’s opinion in Buffington. With the Court any day now poised to conclusively opine on the continued validity of <i>Chevron</i> deference in two cases that came to it after <i>Buffington</i>, <i>Loper Bright Enterprises v. Raimondo </i>and <i>Relentless, Inc. v. Department of Commerce</i>, and given the larger pressures our administrative state faces, considering the values of administrative law comparison and how to employ it properly seems exactly opportune.</p> <p>Part I tracks the rise and fall of comparative administrative law in the U.S. through the years and suggests the causes for its demise. Part II makes the affirmative case for comparative administrative law’s revival, emphasizing the increased possibilities for such comparison today, its ability to enhance understanding of our own administrative law and to point in the direction of desirable reforms, and identifying what this Article calls a “modest and experimentalist” approach that should enable amplifying comparativism’s place while avoiding risks of misuse and abuse. Part III then illustrates this approach by discussing two doctrinal areas where our administrative law could indeed learn valuable lessons by looking outside: first, the law governing administrative guidance, and, second, <i>Chevron</i>, illustrating how an adequate comparative approach rectifies <i>Buffington</i>’s failures and&nbsp;might&nbsp;usefully illuminate the Court’s analysis in either <i>Loper Bright </i>and <i>Relentless</i> or well beyond. The Article concludes by highlighting strategies to support the desired comparative administrative law rebirth, pointing to changes in the law school curriculum and in some scholarly, judicial, and bar practices.</p> <p>&nbsp;</p>