Volume 100 - Issue 1 Georgetown Law Journal

Minimalism and Experimentalism in the Administrative State

This Article identifies and appraises the two most promising alternatives to the “command-and-control” style of public administration that was dominant from the New Deal to the 1980s but is now in disfavor. The first—minimalism—emphasizes public interventions that incorporate market concepts and practices while also centralizing and minimizing administrative discretion. The second—experimentalism—emphasizes interventions in which the central government affords broad discretion to local administrative units but measures and assesses their performance in ways designed to induce continuous learning and revision of standards. Minimalism has been prominent in legal scholarship and in the policy discourse of recent presidential administrations, but its practical impact has been surprisingly limited. By contrast, experimentalism, which has had a lower profile in academic and public discussion, has visibly influenced a broad range of critical policy initiatives in the United States and abroad. Indeed, key initiatives of the Obama Administration, including the Food Safety Modernization Act and the Race to the Top education program, are virtually unintelligible from any other perspective. We argue that, in practice, minimalism suffers from an excessive preoccupation with static efficiency norms and price signals, and from insufficient attention to learning and “weak signals” of risk and opportunity. Experimentalist intervention is a more promising approach in the growing realm of policy challenges characterized by uncertainty about both the definition of the relevant problems and the solutions.

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