The Underexplored World of Remedial Law in Public Administration Scholarship

• Date: 01 April 2014
• Published date: 01 April 2014
• DOI: 10.1177/0095399712451899
• Subject Matter: Articles

Administration & Society

2014, Vol. 46(3) 276 –300

© 2012 SAGE Publications

DOI: 10.1177/0095399712451899

aas.sagepub.com

451899AAS46310.1177/0095399712

451899ChaninAdministration & Society

© 2012 SAGE Publications

1San Diego State University, CA, USA

Corresponding Author:

Joshua M. Chanin, School of Public Affairs, San Diego State University, 5500 Campanile Dr., San

Diego, CA, USA.

Email: jchanin@mail.sdsu.edu

The Underexplored

World of Remedial Law

in Public Administration

Scholarship: An

Examination and Proposed

Research Agenda

Joshua M. Chanin1

Abstract

Remedial law involves the use of litigated reform and injunctive relief to bring

misfeasant state and local bureaucracies in line with federal law. This article

highlights the need for further scholarly engagement with remedial law. It

also indicates that within each stage of the remedial process lies a series of

important research questions, making the area fertile ground for the very

type of administrative expertise and agency-centric approaches that are lack-

ing from our scholarly discourse. Attention to remedial law would not only

strengthen the management of rights-driven reform but also contribute to

the ongoing legitimacy of the public administration field.

Keywords

remedial law, organizational reform, democratic-constitutionalism, public

management

Introduction

In 1926, Leonard White famously proclaimed public administration to be a

field of management rather than law, with its foundation set in executive

Article

Chanin 277

administration and private business rather than in judicial values or courts.

The rule of law, however, is core to the American political consciousness and

foundational to administration within a democratic-constitutional framework

(Scheingold, 2004). Despite this fact, many public administration scholars

heed White’s observation and either appear to take law for granted or see it

as an impediment to efficient, effective, and economical administration (e.g.,

Behn, 2001; Jos & Thompkins, 2004).

These views persist despite the oppositional case made by a distinguished

group of scholars who grounded public administration in legal foundations.

Leading voices like Frank Goodnow (1905) and Dwight Waldo (1984) were

among the first to position law at the center of administrative management.

Over the past 30 years or so, a cohort of academic writers, led by, David

Rosenbloom (1983, 1987, 2007, 2010), John Rohr (1986, 2002), Rosemary

O’Leary (1993, 1995), Phillip Cooper (1988, 2006), Lawrence Lynn (2009),

Ronald Moe (1994), and Charles Wise (1985, 1993), began a persistent and

ongoing effort to articulate the notion that accountability, equity, transparency,

representativeness, due process, the appropriate use of administrative discre-

tion, and a host of other legal values are as critical to modern public administra-

tion as managerial values like efficiency, effectiveness, and economy.

The nature of the argument in defense of the rule of law has come in sev-

eral forms. The most effective of these have relied on careful retellings of

history, exhaustively documenting modern administration’s roots in constitu-

tional principles as expressed by the founders (Rohr, 1986), the New Deal era

Congress (Rosenbloom, 2000), and the orthodox administrative thinkers

(Bertelli & Lynn, 2006), among others. Although incredibly persuasive, they

tend not to reach broader audiences in the field than those already focused on

the legal environment of public sector management.

Of late, many public administration scholars interested in legal founda-

tions have shifted away from historical arguments, favoring instead those that

tie law and legal values to a healthy, robust conception of public administra-

tion. After documenting the dearth of law in public administration scholar-

ship, Lynn (2009), for example, argues that the field’s “benign neglect” of the

rule of law creates an almost existential crisis, “undermin[ing] the legitimacy

and usefulness of a profession that aspires to be indispensable to constitu-

tional governance” (p. 803). Others have taken a more practical tack. In his

2008 Gaus Lecture, Don Kettl (2009) argued that the rule of law is necessary

for combating the various issues of the day:

If government is to rise to the challenge of problems ranging from

managing this [financial] meltdown to making sure consumers can