Minimalism and Experimentalism in the Administrative State

Details

Author(s):
  • William Simon
Publish Date:
December 26, 2011
Publication Title:
100 Georgetown Law Journal 53 . Previously issued as Columbia Law School Public Law Research Paper No. 10-238
Format:
Working Paper
Citation(s):
  • Charles F. Sabel & William H. Simon, Minimalism and Experimentalism in the Administrative State, 100 Georgetown Law Journal 53 (2011). Previously issued as Columbia Law School Public Law Research Paper No. 10-238 (2010).

Abstract

Minimalism is our name for the dominant liberal perspective on public policy implementation in contemporary legal scholarship. Minimalism emphasizes public interventions that incorporate market concepts and practices and that centralize and minimize administrative discretion. This essay appraises Minimalism in relation to a competing liberal view of the administrative state. Experimentalism emphasizes interventions in which 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. We fault Minimalist scholarship for ignoring an important reorientation in public policy along Experimentalist lines in the U.S. and elsewhere since the 1990s. We also argue that, in practice, Minimalism is excessively preoccupied with static efficiency norms and price signals and insufficiently attentive to learning and to “weak signals” of risk and opportunity. Experimentalist intervention is a more promising approach in the growing realm of policy areas characterized by uncertainty about both the definition of the relevant problem and its solution.