Supreme Court Review

Article Title

The New Coke: On the Plural Aims of Administrative Law


In the early twenty-first century, public law is being challenged by a fundamental assault on the legitimacy of the administrative state, under the banner of “the separation of powers.” Mainly found in academia, but with some support on the bench, the challengers frequently refer to the specter of Stuart despotism, and they valorize a (putatively) heroic opponent of Stuart despotism: the common-law judge, symbolized by Edward Coke. As we understand it here, the New Coke is a shorthand for a cluster of impulses stemming from a belief in the illegitimacy of the modern administrative state. The New Coke sometimes takes relatively modest forms, which would merely push existing doctrine in directions consistent with those impulses. But it occasionally takes far more aggressive forms, which would invoke heavy constitutional artillery either to invalidate existing practices or to transform them in light of what its advocates see as background principles for statutory interpretation.

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