Join us for a discussion with Oren Tamir on his upcoming publication “Our Parochial Administrative Law”. This online event zoomed in on U.S. administrative law and the value of meaningful and productive comparative research.  

Professor Liz Fisher, University of Oxford, and Professor Mariolina Eliantonio, Maastricht University, accompanied Dr Oren Tamir in a dialogue on the value of comparative legal research, the development of U.S. administrative law, and on the exchange of lessons between European and U.S. administrative law.

ABSTRACT of the DISCUSSED PAPER

Going back to the birth of modern administrative law in America reveals something striking. The “pioneers” of the field and many who followed in their footsteps weren’t trying to fashion a body of law for a rapidly expanding administrative state by being exclusively self-referential—that is, focusing only on our own idiosyncratic experiences and needs. Rather, they were consistently looking at what the U.S. might learn from other jurisdictions as well. In short, modern administrative law began in our system very much as an exercise in comparative law. Fast forward to today, and this intense comparative engagement has almost vanished from the administrative law scene. It lives only on the margins of the scholarly debate without any real purchase or impact. But even when administrative comparison does rarely appear in prominent places, its employment seems highly problematic, giving the entire enterprise a bad rap. For instance, in his dissent from a denial of cert in Buffington v. McDonough from this past term Justice Gorsuch chastised his colleagues for refusing to reevaluate Chevron deference among other things by noting that other countries “declined to adopt” something similar. To be sure, Justice Gorsuch’s statement is superficially true. But it suffers from many of the familiar failures of irresponsible comparison—including by being shallow, acontextual, and selective. In fact, Justice Gorsuch’s comparativism in Buffington may not only be flawed but also what comparativists might call “abusive”—i.e., done in the service of undermining what our constitutionally legitimate administrative state presently seems to require. 

The paper is available on ssrn by clicking here.