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Stewart on Administrative Fatigue and Revivification

The Inaugural Sexton Professorship of Law Lecture

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Despite the fact that administrative fatigue was the focus of Professor Stewart’s inaugural John Edward Sexton Professorship of Law Lecture, students, faculty, and alumni in attendance failed to crack a yawn. The John Edward Sexton Professor of Law and director of the Center on Environmental and Land Use Law at the Law School, Stewart is considered the world’s foremost expert on the use of economic incentives for environmental protection.

Titled “Administrative Law in the 21st Century,” Stewart’s lecture traced the evolution of administrative regulation in the United States, outlined recent efforts to overcome “administrative fatigue,” and concluded with a look at the emerging international aspects of administrative law.

The administrative state is rooted in common law, and grew up during the industrialization of the 19th century through the managerialism of the New Deal. In the late 20th century, the administrative state was democratized in reaction to the rise of consumer activism, and was later adapted to its current form by the Reagan Administration, which focused on costs and benefits. Stewart said he sees this current form as an amalgam of four historical approaches to public regulation.

According to Stewart, contemporary U.S. administrative law is a combination of tort law in the form of Section 1983 and Bivens actions, adjudicatory enforcement, judicially-supervised interest group mediation, and analytic focus on efficiency. Stewart went on to describe the phenomenon that he calls “administrative fatigue.”

“Americans demand higher and higher levels of regulatory protection, yet regulatory administrative government seems less and less capable of providing such protection in an efficient and effective manner,” he said.

The regulatory process is slow and unresponsive, Stewart said, because the federal government is reliant on commandand- control methods of regulation in which agencies attempt to govern millions through rule-making. This problem is exacerbated by the fact that the two dominant approaches to rule-making — interest group representation and cost-benefit analyses — are themselves painstakingly slow and cumbersome.

To help relieve the problem of administrative fatigue, two new methods for regulatory reform have emerged: governmentstakeholder network structures and economic incentive systems, the latter of which is favored by Stewart. Under a governmentstakeholder network structure, parties to the process overcome the traditional constraints of a top-down approach by forming partnerships across agency lines and between agencies, industry representatives, private firms, and public organizations. Under the economic incentive method, government agencies attempt to channel behavior through the use of market mechanisms like tradable pollution permits and environmental taxes.

U.S. administrative law will continue to evolve toward a more diversified and precisely analytical review that is less costly and time-consuming, according to Stewart. He sees in this evolution a greater role for economic incentive measures, and said that new networks should be created to respond to new regulatory options. Stewart said that regulatory bodies must devise new approaches, which will increasingly move away from judicial solutions, to mediate conflicts and ensure accountability and compliance. Moreover, as transnational regulatory agreements become more common, U.S. administrative law will become increasingly international.

Stewart’s new professorship and the lecture he delivered are named for John Sexton, president of New York University and former dean of NYU School of Law. Sexton is honored for his extraordinary service to the Law School since he joined as a professor in 1981, and went on to serve as dean from 1988 to 2002. Sexton is known for being generous with hugs, which infused all the talk of regulation with an affectionate spirit.

The idea for a professorship to honor Sexton crystallized more than 10 years ago with six forward-looking Law School alumni: Thomas Brome (’67), Ciro Gamboni (’65), Martin Lewis (’51), Frank Morison (’67), Stuart Schlesinger (’67), and Paul Tagliabue (’65). Each pledged equal funding for a professorship to be renamed for Sexton when he left the deanship of the Law School. Created in 1993, the professorship initially was known as the Emily Kempin Professorship, commemorating the first woman to attend regular law classes at NYU. Kempin also conducted the first women’s law class here in 1890. The professorship will continue to embody the commitment to the community that was the hallmark of Sexton’s years at NYU School of Law.