COMMON LAW AND STATUTE LAW IN ADMINISTRATIVE LAW

The largely statutory appearance of U.S. administrative law should not be surprising in light of the existence of the federal Administrative Procedure Act of 1946 (APA). Here, Beerman uncovers the statutory veneer of federal administrative law and reveals ways in which federal courts behave like common law courts, creating administrative law based on principles and policies that may or may not be consistent with the language, structure, and history of the APA and other relevant provisions. He also highlights areas in which the Supreme Court has required a more statutory focus as a matter of contrast with the common law aspects of administrative law to illustrate that the Court has not provided, or even attempted to provide, a principled justification for its continued use of administrative common law. Moreover, he shows that the courts have not provided a method for choosing between a statutory or common law focus in any particular doctrinal area.