This Essay offers a bottom-up analysis of judicial review in the administrative state that focuses on the dynamics of participation. A bottom-up perspective supplements the more conventional top-down analysis of agencies and the courts by drawing attention to the important role that different constellations of participants play in the functioning of the system. This pattern of participation helps determine the behavior of the political and administrative processes. It also helps determine the behavior of the adjudicative process and, therefore, of judicial review. As with the analysis of judicial review of the political process under the Constitution, participatory realities must be taken seriously in analyzing the judicial review of the administrative process. After drawing out the primary variables and forces that shape participation in agencies and courts, this Essay considers various reforms and adjustments that might improve bottom-up institutional functioning in the future.
Neil Komesar and Wendy Wagner, Essay: The Administrative Process from the Bottom Up: Reflections on the Role, If Any, for Judicial Review, 69 Administrative Law Review 891 (2018).