Judicializing the Administrative State
A basic feature of the modern US administrative state taken for granted by legal scholars but neglected by political scientists and historians is its strong judiciality. Formal, or courtlike, adjudication was the primary method of first-order agency policy making during the first half of the twentieth century. Even today, most US administrative agencies hire administrative law judges and other adjudicators conducting hearings using formal procedures autonomously from the agency head. No other industrialized democracy has even come close to experiencing the systematic state judicialization that took place in the United States.
Why did the American administrative state become highly judicialized, rather than developing a more efficiency-oriented Weberian bureaucracy? Legal scholars argue that lawyers as a profession imposed the judicial procedures they were the most familiar with on agencies. But this explanation fails to show why the judicialization took place only in the United States at the time it did. Okayama demonstrates that the American institutional combination of common law and the presidential system favored policy implementation through formal procedures by autonomous agencies and that it induced the creation and development of independent regulatory commissions explicitly modeled after courts from the late nineteenth century. These commissions judicialized the state not only through their proliferation but also through the diffusion of their formal procedures to executive agencies over the next half century, which led to a highly fairness-oriented administrative state.
Hiroshi Okayama is Professor of Political Science in the Faculty of Law at Keio University, Tokyo, Japan.
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Judicializing the Administrative State
The Rise of the Independent Regulatory Commissions in the United States, 18831937
Hiroshi Okayama
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Judicializing the Administrative State
The Rise of the Independent Regulatory Commissions in the United States, 18831937
Hiroshi Okayama
First published 2019
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2019 Hiroshi Okayama
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British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
Names: Okayama, Hiroshi, 1972 author.
Title: Judicializing the administrative state : the rise of the independent regulatory commissions in the United States, 18831937 / Hiroshi Okayama.
Description: Abingdon, Oxon ; New York, NY : Routledge, 2020. | Series: Routledge research in public administration and public policy | Includes bibliographical references and index.
Identifiers: LCCN 2019004637 | ISBN 9781138306653 (hardback) | ISBN 9781315141886 (e-book)
Subjects: LCSH: Independent regulatory commissionsUnited States.History. | Administrative courtsUnited States.History. | United StatesPolitics and government18651933.
Classification: LCC KF5417 .O53 2020 | DDC 342.73/0664dc23
LC record available at https://lccn.loc.gov/2019004637
ISBN: 978-1-138-30665-3 (hbk)
ISBN: 978-1-315-14188-6 (ebk)
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Contents
This book has taken much longer to write than I envisioned at the outset of the research. The project was rather innocently conceived as an inquiry into the introduction of policy expertise into US policy making through the lens of independent regulatory commissions, but it morphed into a quest for the origins of the courtlike administrative state, which required much additional research and self-teaching. It is a joy to be able to finally thank those who have supported me along the way.
I have taught at the University of Tokyo and Keio University while working on this book, and the two academic homes have provided a working environment in which I could balance teaching and research. At the University of Tokyo, I was fortunate to have Yasuo Endo, Jun Furuya, Sheila Hones, Masako Notoji, Toru Umezaki, Yujin Yaguchi, and Daizaburo Yui in American studies guiding me in different aspects of academic life as a full-time faculty member. After moving to Keio, the friendship and advice of those in the faculty of laws Area Studies and Comparative Politics section, Kazuaki Inoue, Naoya Izuoka, Yuko Kasuya, Ryosei Kokubun, Hiroshi Tomita, Shinji Yokote were indispensable in my settling in quickly and continuing working on this project.
It would not have been possible to complete the research for this book without the sabbatical at the University of Virginia School of Law. I very much appreciate the hospitality its faculty and staff extended to me. Naoyuki Agawa, Ryosei Kokubun, Paul Mahoney, Akiyo Okuda, Elizabeth Sanders, and Olivier Zunz played critical roles in making the stay happen, and I am deeply obliged for their support. At UVA, I also benefited much from attending occasional academic events at the Miller Center, and I thank Brian Balogh and Sidney Milkis for being such kind hosts. Befriending Adrienne and Colin Bird, Claudia Brhwiler, and Daniel Husermann was among the best things that happened to me during the visit. I also cherish the memories of the fun time George, Lois, and Christina Westerlund; the late Jim Kauzlarich; and the folks from the Saturday Coffee Group shared with me and my family.
