Complexity in Administrative Law

Readings in Complexity
By J.B. Ruhl

Back from a blogging hiatus, I'm resuming the series on complexity theory in legal scholarship by reviewing Donald Hornstein's recent work in the Duke Law Journal on Complexity Theory, Adaptation, and Administrative Law.

Hornstein's objective is to test the ability of complexity theory to contribute to explanations of change in administrative law. Noting that many other theoretical frameworks have attempted to do so--interest group pluralism, civic republicanism, public choice economics, substantive welfarism, and so on--he asks whether it is worth exploring yet another in the form of complexity theory. To my delight, he concludes it is.

His reason for focusing on complexity theory relates to the specific problem of administrative law theory that motivates this work: the importance and mechanisms of adaptation within systems that change over time, such as the regulatory system. Thus he opens by suggesting the "possibility that complexity theory may be capable of illuminating features of the legal landscape [of administrative law] more completely than other explanatory tools." In particular, he focuses on the properties of emergence, nonlinearity, and sensitivity to initial conditions as features that may make complexity theory more useful than the other theories in explaining change and adaptation in administrative law systems.

Using those premises and tools, he focuses on three normative claims of administrative law that depend on notions of adaptation: that states offer advantages over the federal government in policy formation because they are more experimentalist; that federal agencies should become more experimentalist by employing adaptive management; and that agencies should use "collaborative" methods of enlisting stakeholders in agency processes.

Hornstein matches up the three features of complexity theory with the three normative claims in what amounts to a remarkably insightful exploration of administrative law. He first grounds each of the features of complexity theory in administrative law theory and examples, then works through the three normative claims using complexity theory along the way. The result is both a general overview of complexity theory in the administrative law context, and a refreshingly insightful analysis of three issues that are at the cutting edge of administrative policy. In both senses Hornstein expertly engages the legal scholarship on administrative law. The article could not disappoint anyone with either interest--administrative law or law and complex systems--and is a pleasure to read for anyone, such as I, who has an interest in both. No doubt I feel that way in some part due to his conclusions "that law generally, and regulatory environments in particular, might share the tendencies of complex adaptive systems," and hence "that existing law and the claims made by legal reformers, can be evaluated more fully by attention to both the metaphors and mechanisms that complexity theory offers."