One of the most salutary developments in modern public law scholarship has been the emergence of an administrative law literature focusing on governance rather than legality. Until recently, scholarship about the operation of modern government devoted nearly all its attention to the legal limits on administrative action. (1) This is an important inquiry, and one that can be pursued using familiar modes of legal analysis. The Supreme Court has certainly encouraged it by reviving formalist approaches to federalism and the separation of powers. (2) Even so, the resulting scholarship, like the Court's decisions, tends to nibble around the edges of modern government without addressing its essential functions. Recent scholarship, in contrast, addresses basic questions regarding the organization and operation of the governmental apparatus: How should agencies be designed? How should they implement their statutory mandates? How should they interact with each other? Does cost benefit review improve the quality of their decisions? Does the timing of decisions affect the quality of those decisions? (3) These inquiries demand new modes of analysis, often unfamiliar in legal literature, that hold great promise for understanding and improving modern government.
Much of the new scholarship involves what the legality model calls "rulemaking." (4) From the governance perspective, rulemaking is only a subset of a larger category of administrative action that is more accurately described as policymaking and generalized implementation. (5) In addition to rulemaking, government carries out a great deal of individualized implementation, that is, the application of established policy to individuals. The legality model tends to describe this function as "adjudication," (6) but again, a governance approach indicates that adjudication is only a subset of a larger category that includes planning, targeting, threatening, cajoling, advising, and a variety of similar functions. (7) This larger category also includes most of the government's interactions with individuals who are enrolled or confined in public institutions such as schools, universities, long-term care facilities, mental hospitals, and prisons. Legal scholarship about these interactions has tended to remain within the legality model, however, rather than moving to consider broader questions of governance. (8)
One reason for the difference may be that policymaking and large-scale implementation are more visible than the quotidian interactions between government and individuals. Another may be the greater relevance and appeal of the legality model in the individualized implementation context. The application of legal rules, particularly constitutional rules, to issues of governmental structure is controversial; many commentators (9) and a number of recent and current Supreme Court Justices (10) would dispense with much or all of it. In contrast, the legality model for individualized implementation--which centers on procedural due process--is widely accepted. Although the extent of its application is a source of controversy, hardly anyone questions its value or its applicability to a wide range of modern governmental functions. There is now a general consensus that due process applies to the revocation of licenses and benefits, to the termination of government employment, to expulsion from beneficial institutions such as public schools, and to the more severe restrictions within punitive institutions such as prisons. (11)
The value of due process as a means of controlling bureaucratic oppression will be discussed below. (12) For the present, the point is not whether it is good or bad, but rather that it is only one of many mechanisms that can be deployed to regulate the government' s interactions with individuals. To limit consideration of these mechanisms to due process protections is to make the same mistake that recent scholarship has overcome with respect to policy formation--that is, focusing primarily on issues of legality rather than confronting the broader range of issues that are relevant to governance.
The purpose of this Article is to expand consideration of the problems involved in the interactions between government and individuals, and to explore potential solutions to those problems, in the same manner that recent legal scholarship has expanded consideration of the problems and potential solutions involved in government policymaking. Because the topic is so vast, it is best approached by considering specific types of interactions between the government and individuals. This Article will focus on interactions that are potentially oppressive. (13) The paradigmatic case, and the image that might most quickly spring to mind, is the treatment of individuals applying for government benefits or licenses. But the problem extends to a much broader range of interactions, including the treatment of business enterprises by regulatory agencies, the treatment of government grantees by funding agencies, the treatment of individuals by protective services like police or firefighters, and the treatment of individuals in government institutions, whether beneficial or restrictive. Of course, each of these situations has distinctive features that merit specific and detailed analysis. Thus, a general discussion of this vast topic is necessarily of a preliminary nature.
Part I of the Article discusses the sources of bureaucratic oppression and identifies four such sources: status differences, stranger relations, institutional pathologies, and divergent incentives. Part II explores four solutions to the problem of bureaucratic oppression that have been proposed and in some cases implemented. The first two--the judicial solution of due process and the legislative solution of ombudspersons--involve actors external to the administrative system. The second two--the management theory solution of client-centered administration and the microeconomic solution of market simulating mechanisms--are internal to that system. Because of the limitations of these various solutions, Part III proposes an additional solution, described as a collaborative monitor. This monitor would be an agency of the legislature that could bring the issue of oppressiveness to an administrative agency's attention and then work collaboratively with that agency to resolve or ameliorate the problem.
THE SOURCES OF BUREAUCRATIC OPPRESSION
Modern administrative, or bureaucratic, government became dominant in Europe toward the end of the eighteenth century. (14) It advanced rapidly because it was a more effective mode of governance than the traditional approach, which was modeled on feudal relationships and the royal household. (15) In addition, it provided some protection for the working classes whose relocation from their traditional villages to industrial cities had subjected them to the otherwise unregulated rigors of modernity. But the increasing power and extent of the bureaucracy also created serious potential for the mistreatment of the individuals who were subject to, and dependent on, this new mode of governance.
It is not surprising that the classic account of bureaucratic oppression, Nikolai Gogol's "The Overcoat," (16) comes from nineteenth-century Russia, where bureaucracy was used as a means of controlling a vast, underdeveloped realm, and no mechanisms of democratic supervision were available to moderate its rigors. (17) The story involves a timid, impecunious government clerk named Akaky Akakyevich. When Akaky's newly-made overcoat, on which he has lavished his meager life savings, is stolen, he is advised that he will never get it back if he goes to the police because he will be unable to prove that was is his. Instead, he should apply to a higher official, a Very Important Person, who can intercede on his behalf. But Akaky happens to appear at the time when this Very Important Person has received a visit from a childhood friend, whom he wants to impress. After making Akaky wait outside his office for an inordinate length of time, he allows him to come in and state his request. "'What do you mean, sir?'" he thunders to Akaky,
"Don't you know the proper procedure? What have you come to me for? Don't you know how things are done? In the first place you should have sent in a petition about it to my office. Your petition, sir, would have been placed before the chief clerk, who would have transferred it to my secretary, and my secretary would have submitted it to me...." (18)
Further admonitions of this kind reduce Akaky to a state of nervous collapse; he is carried out of the office, succumbs to a fever, and dies. (19)
Charles Dickens's depiction of the Circumlocution Office in Little Dorrit (20) is less severe but perhaps more familiar, as is to be expected from someone writing about a more securely ordered and at least quasi-democratic regime. When Arthur Clennam, recognizably a gentleman, attempts to discover the nature of the debt that is keeping William Dorrit in Marshalsea Prison, he is referred to the Circumlocution Office. There, he is treated politely enough but sent back and forth from one office to another, all occupied by supercilious officials who spend their time making sure that nothing get done. His most helpful informant tells him to keep inquiring until he finds out which department has a record of the debt:
"Then you'll memorialise that Department (according to regular forms which you'll find out) for leave to memorialise this Department. If you get it (which you may after a time), that memorial must be entered in that Department, sent to be registered in this Department,...