Rediscovering the APA

Evan D. Bernick, Envisioning Administrative Procedure Act Originalism, 70 Admin. L. Rev. __ (forthcoming 2018), available at SSRN. Jeffrey Pojanowski Forty years ago, then-Professor Antonin Scalia published Vermont Yankee: The APA, the D.C. Circuit, and the Supreme Court in the Supreme Court Review. There, the future Justice both chastised the D.C. Circuit for ignoring the text of the APA (Administrative Procedure Act) and offered a “lament” about how faithful judicial adherence to the original public meaning of that foundational statute could not provide a durable framework for administrative governance. Thus, even for skeptics of federal common-lawmaking like Scalia, the original APA has remained in substantial part unloved, or at least often benignly neglected. Evan Bernick, a visiting lecturer at Georgetown Law, and a thoughtful provocative new voice in administrative law, is wondering whether administrative lawyers have given up too fast on the…

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