FOREWORD Embracing Administrative Common Law

This Foreword begins with the descriptive claim that much of administrative law is really administrative common law: doctrines and requirements that are largely judicially created, as opposed to those specified by Congress, the President, or individual agencies. Although governing statutes exert some constraining force on judicial creativity, the primary basis of these judge-fashioned doctrines lies in judicial conceptions of appropriate institutional roles, along with pragmatic and normative concerns, that are frequently constitutionally infused and developed incrementally through precedent. Yet the judicially created character of administrative law is rarely acknowledged and often condemned by courts. Turning from descriptive to more normative, this Foreword argues for explicit judicial recognition and acceptance of administrative common law. Administrative common law serves an important function in our separation of powers system, a system that makes it difficult for Congress or the President to oust the courts as developers of administrative law and makes administrative common law inevitable. Moreover, courts have employed administrative common law as a central mechanism through which to ameliorate the consti* Vice Dean and Stanley H. Fuld Professor of Law, Columbia Law School. Special thanks for very helpful comments and suggestions to Michael Asimow, Jack Beerman, Mitch Berman, Lisa Bressman, Bradford Clark, Ariela Dubler, John Manning, Tom Merrill, Trevor Morrison, Henry Monaghan, Larry Sager, Michael Shenkman, David Strauss, Peter Strauss, Kevin Stack, and participants at faculty workshops at Columbia, University of Texas, and Vanderbilt law schools. Joseph Borson, Maren Hulden, Michael Lieberman, Kerianne Tobitsch, and Amanda Vaughn provided excellent research assistance. I am also grateful to the Madsen Family Research Fund for financial support provided this project. July 2012 Vol. 80 No. 5