ACUS--And Administrative Law--Then and Now

The Administrative Conference of the United States (“ACUS”) both shapes and reflects the intellectual, policy, and practical concerns of the field of administrative law. Its recommendations are therefore a useful lens through which to view that field. Also, because of an unfortunate hiatus, ACUS has gotten underway not once but twice. Those two beginnings provide a kind of natural experiment, and they make a revealing contrast. This article traces the transformations of American administrative law, as well as the field’s perpetual concerns, by comparing the initial recommendations of ACUS 1.0 (1968 to 1970) with the initial recommendations of ACUS 2.0 (2010 to 2013). ACUS issued its first recommendations in 1968. At the time, Richard Stewart’s celebrated article, The Reformation of American Administrative Law, was still seven years away, and the rise of the interest representation model Professor Stewart identified was underway but not complete. Since then, administrative law has continued to be reformed, moving away from the interest representation model. Certain issues—for example, transparency, efficiency, and meaningful public participation—remain central preoccupations. However, new technologies, a shift from adjudication to rulemaking, the influence of the unitary executive model, and other developments, all woven into the more recent recommendations, make the contemporary field quite different from your grandfather’s administrative law.