Winter 1999, Vol 24 No2

Scholarship Award Goes to Two Recipients

Professor Mashaw's book swims against the stream; current wisdom involves devolution and Presidential or Congressional oversight of the regulatory state, but in his provocative book Professor Mashaw unashamedly advocates even greater delegation to federal agencies. Ironically, Professor Mashaw uses public choice theories (economic theory applied to politics), which have been in the forefront of critiques of the regulatory state, to justify his proposals. Public choice theory posits that rent-seeking special interest groups provide the impetus for or capture regulatory programs, so that the idea of a search for the "public interest" is wholly illusory. Instead, government regulatory programs are used merely to further the interests of private and special interests. Such a vision of government regulation obviously undermines its legitimacy. Mashaw's book, which grew out of the Rosenthal Lectures that he gave at Northwestern University Law School, first assesses the validity of public choice theory. In the words of Professor Cass Sunstein, reviewing the book in the New York Times Book Review, "Public choice theory should be taken seriously - but not too seriously. In this thought-provoking book, Jerry Mashaw stakes out a middle ground between those who champion public choice theory . . . and those who disparage it." Or, as Judge Stephen Williams of the D.C. Circuit and former Section Council Member put it in his review of the book for the Notre Dame Law Review, "Jerry Mashaw might have entitled his book One and a Half Cheers for Public Choice. Maybe just one cheer. Though the eye with which he looks at public choice theory may be jaundiced, he finds enough in it to justify a thoughtful consideration of many possible applications." In short, Professor Mashaw finds public choice theory inadequate in its description of the regulatory state, but suggestive enough of potential problems that its central insight of political capture by special interests suggests measure designed to counter that capture. This conclusion leads him to his proposed solution: increased delegation to federal agencies, because federal agencies are more insulated from special interests than the directly elected branches of government - Congress and the President. Whether one agrees or disagrees with Professor Mashaw's analysis and proposals, one will not leave his book unenlightened.

Professor Farina's article, which is part of an excellent symposium with several other fine pieces on administrative law, is a singular contribution to the literature on the legitimacy of the administrative process. She notes that the legitimacy problem, "like an intriguing but awkward family heirloom," has been handed down from generation to generation of administrative law scholars. Her essay explores the increasing tendency during the 1900s among scholars and some courts to see the President as supplying the critical foundation for democratic legitimation of administrative power. She helpfully elaborates on and deeply critiques the prominent notion that the President is uniquely situated to infuse the "will of the people" into regulatory policymaking.

In exploring this protean idea, Farina sheds light on the Framers' original understanding of the structure of constitutional government as well as a wide range of contemporary debates concerning political mandates, democratic responsiveness, and the psychological underpinnings of "good government." Her piece proceeds simultaneously on theoretical, doctrinal, and practical levels of analysis, and is excellently written. However one reacts to her thesis in favor of a multi-level, dynamic, highly nuanced understanding of how government gives voice to the peoples' will, one will learn a great deal about the constitutional and pragmatic underpinnings of both contemporary and historical efforts to ground administrative legitimacy and reform.

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