Introduction: Administrative Lawmaking in the Twenty-First Century

It is always hard to map a river while sailing midstream, but the current state of administrative law is particularly resistant to neat tracing. Until the past few years, administrative law and scholarship was marked by pragmatic compromise: judicial deference on questions of law (but not too much and not all the time) and freedom for agencies on questions of politics and policy (but not to an unseemly degree). There was disagreement around the edges—and some voices in the wilderness calling for radical change—but they operated within a shared framework of admittedly unstated, and perhaps conflicting, assumptions about the administrative state and the rule of law Today, there is a sense that this pragmatic consensus is becoming unstable. Critics of the administrative state and its constitutional legitimacy seek a return to an original settlement of limited, separated powers.

At the other end of the spectrum, scholars who applaud lawyers’ retreat from interfering with administrative governance call for a more complete abnegation. In between these poles lies uncertainty or fresh attempts to bolster a center that threatens no longer to hold. With so much in administrative law and theory up for grabs, the Notre Dame Law Review’s Symposium “Administrative Lawmaking in the Twenty-First Century” could not be timelier.