The field of Administrative Law typically focuses on federal agencies, but there are tens of thousands of state and local agencies that administer the law on matters of tremendous consequence. As Nestor Davidson recently put it, the field’s “myopic federal focus obscures a massive, submerged, and surprisingly vibrant domain of administration that exists at the local-government level.” Thinking about these other levels of administration can both illuminate the actual workings of important policy areas and prompt fruitful reflection on recurring administrative-law questions.
Maria Ponomarenko’s thought-provoking new article, Rethinking Police Rulemaking, accomplishes both of these worthy goals. One significant species of local administration, she reminds us, is policing. There are close to 18,000 law enforcement agencies across the country, and they make a range of policy choices of great consequence, including regarding the use of force, stop and frisk, enforcement priorities, and “the persistent creep of the surveillance state.” In Rethinking, Ponomarenko brings fresh perspective to debates over how to oversee police agencies. In particular, she challenges a longstanding idea that an administrative-law mainstay, notice-and-comment rulemaking, is the most promising solution for holding police more accountable. Continue reading "Refining Administrative Law’s Lessons for Police"