On this episode of Free Range, host Mike Livermore is joined by Jed Stiglitz, a law professor at Cornell whose new book, The Reasoning State, was recently published by Cambridge University Press.

The podcast begins with a conversation on the love-hate relationship between American society and agencies like the EPA. These agencies hold a lot of power and are called on to address many pressing social problems, but they also seem to be a near constant target of political attack. (0:39-5:14) Stiglitz is skeptical that these attacks are genuine and sees them as playing a more symbolic role.

Nevertheless, the question of what legitimates agency’s authority remains. Stiglitz argues that expertise is not the sole reason that the political branches often delegate important decisions to agencies. For him, administrative process plays an important role. Agencies are bound by procedures, like reason-giving and independent review that legislatures are not, and fundamentally cannot be. (5:14- 15:12)

Stiglitz is interested in building a positive theory for how the normative commitments in administrative law could come about through the incentives of political actors. For him the story begins with the progressive era in U.S. history. As the economy became complex, large firms developed, government decisions become more difficult to understand, investigative journalism exposed bad practices, and distrust grew. Agencies, and the procedures of administrative law, were a response to this new environmental that at least partially mitigated the trust gap. (15:13-24:47)

The conversation turns to the relationship between rational choice models and the exploratory, evolution-like process that leads to lawmaking. Stiglitz sees rational choice as a useful summary of the forces at play, rather than an actual account of how decisions are made. A more historical account focuses on how human decision makers navigate a complex world full of uncertainty. Since the failed efforts of politicians go unseen, the end result of even a largely random exploration process can look quite rational.  (24:48-31:42)

One issue for the legitimacy-procedure link is that the average person is not well-informed on administrative procedure. In his book, Stiglitz describes experiments that have revealed that knowledge on procedure affects how people feel about policy outcomes. He argues that the broader public can gain knowledge about procedure via media and other intermediaries. Livermore mentions that people also gain knowledge about administrative process through public comment campaigns, which could help increase legitimacy for agencies.  Stiglitz remarks that agencies being subjected to judicial review is covered in the news frequently and therefore is well known. (31:43-41:05)

The two discuss the balance between too much and too little procedure: too much procedure hinders the efficacy of agencies by making it too hard to produce any policy; too little procedure results in distrust.  Stiglitz also notes that procedure is inherently political and also naturally affects the outcomes of agency decisions. The procedure/substance barrier is permeable and perennially contested. With respect to the current state of administrative law, Stiglitz argues that we have too much procedure in some ways and too little in others. (41:06-49:11)

The podcast wraps up by discussing the role of politics in agency decision making. For Stiglitz, agencies are not completely technocratic but they can be fairly unpolitical. This is because agencies effectuate statutory objectives, which, while contested, nonetheless direct agency discretion. The role of politics in agency decision making is regulated and mediated by statutory directives. Even where statutory objectives are themselves the subject of political debate, there is still only a limited range of discretion in agency decision making. (49:12-1:00:39)