Metzger on the Administrative Conference of the United States (AdLaw Bridge Series)
When considering how to bridge the gap between the theory and practice of administrative law — the aspiration of this AdLaw Bridge Series — one organization stands out as embodying this mission: theAdministrative Conference of the United States (ACUS). ACUS is an independent federal agency that conducts research in administrative law with the hope of identifying best practices across the federal regulatory state and recommending changes to internal agency processes and practices as well as external oversight and review of agency action. Its impressive membership consists of folks both inside and outside government, and it has made over 200 recommendations for better administrative governance (based on extensive reports by academics and practitioners commissioned to carry out high-quality research).
ACUS has an interesting history. Congress established the agency in 1964, and it operated continuously until it was defunded in 1995. Congress reauthorized funding for ACUS in 2004. Next year, I’m told, will mark its fiftieth anniversary in operation. To celebrate this anniversary, the George Washington Law Review will be publishing a special double issue with contributions from a couple dozen academics, agency officials, and ACUS staffers (more here ).
To provide just a glimpse into what will certainly be a terrific double issue, I thought I’d focus on Gillian Metzger‘s contribution, entitled “Administrative Law, Public Administration, and the Administrative Conference of the United States ,” which was just posted on SSRN. I decided to highlight Professor Metzger’s contribution because I’ve long considered her scholarship to be the gold standard in administrative law and this particular essay highlights nicely how ACUS helps bridge the gap between theory and practice (and between administrative law and public administration). Here’s a nice summary of the piece from the abstract:
From its birth administrative law has claimed a close connection to governmental practice. Yet as administrative law has grown and matured it has moved further away from how agencies actually function. In particular, as many have noted, administrative law ignores key administrative dimensions, such as planning, assessment, oversight mechanisms and managerial methods, budgeting, personnel practices, reliance on private contractors, and the like. The causes of administrative law’s disconnect from public administration are complex and the divide is now longstanding, going back to the birth of each as distinct fields. But it is also a growing source of concern, and internal administration is increasingly becoming the linchpin for ensuring accountable government. Enter the Administrative Conference of the United States (ACUS). ACUS represents one of the rare instances in which administrative law and public administration have been linked and is ideally situated to study administrative law’s effects on internal agency operations and assess whether — as well as how — administrative law might be used to improve public administration.
The history of the divide between administrative law and public administration is a fascinating read, as Professor Metzger nicely explains that original administrative law scholarship consisted of external administrative law (what we typically consider to be administrative law today) and internal administrative law (today’s public administration). Professor Metzger presents a compelling case that this divide is no longer tenable — it if ever was — because effective external administrative law requires an in-depth understanding of internal administrative law. I experienced that firsthand in my two-year-long empirical study of agency interpretive practices, which I blogged about briefly here last week and plan to blog about more in the coming months.
Fortunately, ACUS serves as a terrific bridge between internal and external administrative law, between public and private, and between theory and practice. It’s worth subscribing to their reports and recommendations (which you can do here ), and it will be great to read the full law review double issue on ACUS next year. I also plan on blogging about a number of ACUS reports and recommendations as they are released.
[UPDATE: It turns out the Law Review has more information on its website. I’ve updated the post to include the link and to correct that it will be a special double issue.]
