Common Law, Equity, and American Public Administration

• Date: 01 September 2002
• Author: Richard T. Green
• DOI: 10.1177/0275074002032003001
• Published date: 01 September 2002
• Subject Matter: Articles

ARPA/September2002Green/LAW,EQUITY,ANDPUBLIC ADMINISTRATION

COMMON LAW, EQUITY, AND

AMERICAN PUBLIC ADMINISTRATION

RICHARD T. GREEN

University of Utah

This article evaluatesthe claims of those who advocate the use of common law as a corrective to the stat-

utory and rule-based excessesof the American administrative state. Their claims are assessed in light of

common-law history and in terms of currentadministrative law. Although many claims are exaggerated

or simply wrong,there are some aspects of common law that deserve attention in public administration.

These are explained fromthe perspective of common-law evolution. Common law developed in a very

pragmatic and experimental fashion and thereforedisplays some qualities public administrators will

find useful, especially in the adjudicative realmof agency decisions, but more broadly as well. A model

with five featuresof common-law practice is presented for public administrators to use in improving an

agency’s decision making under law.

This article critically examines an emerging literature that advocates reinvigora-

tion of common law as a corrective to the excesses of the modern administrative

state. Contributors to this literature make severalclaims for the common law. These

are assessed in light of common-law history,and many are found wanting. Some of

them, however, have merit and are worthy of attention by public administration

scholars and practitioners. The analysis identifies specific features of common law

that public administrators should know more about. They should learn about these

first because these are likely present in some form in most agencies and could be

applied more astutely and systematically for greater benefit. Furthermore, they are

amenable to use by a variety of officials, not exclusively by attorneys. They are

especially applicable to the variety of informal and formal adjudicativedecisions in

agency life but also extend beyond adjudication to types of decisions not recog-

nized in the current structure of American administrativelaw. Perhaps as important,

they can be applied to the realm of quasi-governmental and third-sector organiza-

tions. There they may provide a basis for rule by law in ways that current adminis-

trative law cannot.

This article also advocates an approach to common law that is developmentalin

nature. Much of the history of common law is one of pragmatic experimentation

and adjustment to changing conditions. The same conditions and needs apply to

much of the work of public administration, especially in the vast informal realms of

Initial Submission: July 7, 2001

Accepted: November 20, 2001

AMERICAN REVIEW OF PUBLIC ADMINISTRATION,Vol. 32 No. 3, September 2002 263-294

© 2002 Sage Publications

263

agency activity.These realms are formative of both policy and administrative prac-

tice and therefore also of law.But because they are formative, they are also prema-

ture. Decisions at this level most often escape scrutiny by superior bodies such as

courts and legislatures and yet demand reasonableness—a minimal standard of

legality—if they are to last. When treated in developmentalfashion, the features of

common law discussed here can provide flexible modes of administrative adapta-

tion that will meet the standard. As such, they compose a distinctivemodel of com-

mon law for administrative use. The more formal and rigid features of the common

law, as currently practiced by attorneys and judges, are thus downplayed.

ADVOCATES OF THE COMMON LAW

In 1994, Philip K. Howard published his book The Death of Common Sense:

How Law is Suffocating America. In it he details how decision making in public

agencies has been perverted through a simplistic devotion to procedural law. In his

book, he presented some rather complicated political and legal developments(such

as “interest-group liberalism” [Lowi, 1979] and changes in American legal philos-

ophy) in easy-reading prose. The book quickly became a hot seller and was subse-

quently used by conservativepoliticians as yet more evidence of the need to reform

government.

Howard’s solution to this legal/administrative malaise, however,has been criti-

cized for being trite and vague at best and dangerous at worst (Wirth & Silbergeld,

1995). He advocates giving public administrators the power to cultivate and use

their own common sense in making decisions that do not impinge on fundamental

rights. Howard wants public managers to apply their judgment in the application of

legally established goals and principles rather than have them bound by elaborate

and expensive rules of procedure that, for the sake of clarity and consistency, often

lead to absurd results.

Howard equates his “common sense” approach to decision making under com-

mon law. We should resist, Howard (1994) says, the “obsession with preordained

rules,” which requires strict adherence, and return to “law that allows thinking.”

Before American law became the world’s thickest instruction manual, it worked

on general principles that reflected the law’sgoals. The common law has plenty of

rules and guidelines, but they are subservient to broader principles. If applying a

guideline in a particular case seems inconsistent with the principle, an exception is

made [without compromising the principle].... Principles allow us to think. (pp.

175-176)

Howardis not alone in making such claims for the common law. Numerous legal

scholars have touted its virtues and advocatedits resurgence. For example, Richard

Epstein (1995), in Simple Rules for a Complex World,echoes Howard’s diagnosis

and explains in detail how common-law principles can work to simplify our legal

264 ARPA / September 2002

system and help us cope more effectively with many social ills. Unlike Howard,

Epstein reveals a strong bias in favorof private, market-styled social interaction to

solve problems. The common law can facilitatethis kind of interaction, he believes,

whereas public agencies—as currently administered—help promote unrealistic

aspirations for social justice and equity and promulgate rules mired in comprehen-

sive rationality.The latter approach leads to complex and overly refined rules that

only lawyers can understand, thereby creating rule by lawyers. At best, Epstein

argues, a legal system can provide permanence and stability by protecting private

property and the freedom of contract. It is unrealistic, even dangerous, to expect

more of law (Epstein, 1995, pp. ix-49). He would, therefore, severely curtail gov-

ernmental action.

In similar fashion, Richard Posner (now a federal judge) and William Landes

advocate the theory that common law, and especially tort law, promotes economi-

cally efficient decisions. Theyattempt to demonstrate through application of math-

ematical models that common-law decisions tend to maximize the creation of wealth

while reducing administrative costs (cf. Landes & Posner, 1987; Posner,1986). T hey

claim that this efficiency is “neutral” with respect to distributionof wealth. That is,

it promotes wealth and reduces costs irrespective of who benefits by it.

In a somewhat different vein, David Sciulli (1992) contends that the common-

law tradition providesa necessary antidote to the creeping authoritarianism of mod-

ern constitutional regimes by encouraging more independent, collegialinstitutions.

Such institutions possess the means to evaluate and restrain sovereign authority in

much the same manner the legal profession did in English history.There it grew as a

restraining influence over kings and set the stage for mixed government. Sciulli

thereby offers a “non-Marxist critical theory” that he believes inheres in common-

law practice.

Other authors have also tried to tailor specificaspects of common law to existing

governing institutions. Guido Calabresi, for example, builds a meticulous and

sophisticated argument for vesting limited powers of statutory revision in the

American courts. He believeswe suffer from a growing imbalance of statutory laws

(called “statutorification”), many of which are obsolete, or worse, out of step with

the “legal topography”that tends to faithfully reflect the basic will or interests of the

American people. Judges are situated, due to their particular competencies in our

legal landscape, to exercisesome powers of revision through common law. As with

the previous writers, Calabresi sees common law as that branch of law best

equipped to make evolutionaryand localized changes that are less abrupt than those

occurring by statute. This same evolutionary process may be applied to the revision

of obsolete laws—a task performed very poorly by legislatures. The courts are

uniquely qualified, he argues, to use their case-based mechanisms to soften the del-

eterious effects of statutorification (Calabresi, 1982, chap. 1 and 9).

At the agency level, scholars such as Alfred Aman, Peter Schuck, and Gary

Bryner have conducted detailed analyses of rule-making processes and concluded

that substantial reform is required. They believe some common-law mechanisms

Green / LAW, EQUITY,AND PUBLIC ADMINISTRATION 265