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Harris on Environmental Deliberative Democracy

By Lawrence Solum

Michael Ray Harris (University of Denver Sturm College of Law) has psoted Environmental Deliberative Democracy and the Search for Administrative Legitimacy: A Legal Positivism Approach (University of Michigan Journal of Law Reform, Vol. 44, 2010) on SSRN. Here is the abstract:

An emerging body of scholarship suggests that legitimizing environmental lawmaking will require the inclusion of greater public discourse within the context of administrative decision-making. In this article, I examine this claim through the lens of modern legal positivism. It is argued that legal positivism provides the tools necessary to test for and identify the specific structural deficiencies that undermine the legitimacy of the administrative state as a lawmaking institution, and more importantly, to determine what legal changes to agency practice and procedure must be implemented to correct those deficiencies. I reject, however, that the appropriate rule of recognition to measure bureaucratic legitimacy in the American system is the U.S. Constitution. Instead, it is proposed that legitimacy of the administrative state ultimately relies on fashioning rulemaking procedures to address American?s innate distrust of official power. My own view of such a reformed regulatory state is one where regulators continue to function as the technical and scientific experts, and in making policy determinations weigh the expert knowledge with the informed opinion of electorate and peer officials in the political branches of our government.

Full post as published by Legal Theory Blog on May 04, 2010 (boomark / email).