Document Type
Article
Publication
Administrative Law Review
Year
2014
Citation Information
Sharon B. Jacobs, The Administrative State's Passive Virtues, 66 Admin. L. Rev. 565 (2014), available at https://scholar.law.colorado.edu/faculty-articles/431.
Abstract
Fifty years ago, Alexander Bickel famousy suggested that courts use tools like standing, ripeness, and the political question doctrine to avoid reaching the merits of difficult cases. Yet despite the increasingly central role of administrative agencies in government, there have been no efforts to date to apply Bickel's insights to the bureaucracy. This Article remedies that deficit. The Article provides a three-part taxonomy of administrative restraint and offers case studies from federal agencies such as the Federal Energy Regulatory Commission, the Environmental Protection Agency, and the Fish and Wildlife Service. It argues that agencies sometimes use restraint strategically for reasons similar to Bickelian courts: to avoid unnecessary conflict with other institutional actors. Moreover, like the passive virtues in the judicial arena, such agency passivity is often normatively desirable. As long as certain internal agency safeguards exist, passivity should be facilitated rather than undermined by reviewing courts.
Copyright Statement
Copyright protected. Use of materials from this collection beyond the exceptions provided for in the Fair Use and Educational Use clauses of the U.S. Copyright Law may violate federal law. Permission to publish or reproduce is required.
Comments
"© 2014 by the American Bar Association. Reprinted with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association."