The Underexplored World of Remedial Law in Public Administration Scholarship

Date01 April 2014
Published date01 April 2014
Subject MatterArticles
Administration & Society
2014, Vol. 46(3) 276 –300
© 2012 SAGE Publications
DOI: 10.1177/0095399712451899
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.
The Underexplored
World of Remedial Law
in Public Administration
Scholarship: An
Examination and Proposed
Research Agenda
Joshua M. Chanin1
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.
remedial law, organizational reform, democratic-constitutionalism, public
In 1926, Leonard White famously proclaimed public administration to be a
field of management rather than law, with its foundation set in executive
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

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