The abstract for the paper says:
"An emerging body of scholarship suggests that legitimizing environmental lawmaking will require the inclusion of greater public discourse within the context of administrative decision-making. In this article, I examine this claim through the lens of modern legal positivism. It is argued that legal positivism provides the tools necessary to test for and identify the specific structural deficiencies that undermine the legitimacy of the administrative state as a lawmaking institution, and more importantly, to determine what legal changes to agency practice and procedure must be implemented to correct those deficiencies. I reject, however, that the appropriate rule of recognition to measure bureaucratic legitimacy in the American system is the U.S. Constitution. Instead, it is proposed that legitimacy of the administrative state ultimately relies on fashioning rulemaking procedures to address American’s innate distrust of official power. My own view of such a reformed regulatory state is one where regulators continue to function as the technical and scientific experts, and in making policy determinations weigh the expert knowledge with the informed opinion of electorate and peer officials in the political branches of our government."
Prof. Harris' paper will be published in the University of Michigan Journal of Law Reform, Vol. 44 2010.
Prof. Harris is one of the country's top environmental clinicians. Students who study at the Sturm College of Law have the option of participating in the Environmental Law Clinic, which Prof. Harris directs.
To see the full-text of the article, please click here.