Images of Representation

Abstract

This paper is one of a series of papers commemorating Richard Stewart’s important article, The Reformation of American Administrative Law. Among other things, Stewart’s 1975 article identified “interest representation” as the central idea that animated a series of important and disparate developments in administrative law doctrine. This paper unpacks the idea of interest representation and identifies tension in that idea. It does so by asking a simple question: What is the function of representing interests in administrative process? The paper argues that, in Stewart’s work and in the law more generally, there are two distinct answers to that question. One answer is straightforwardly instrumental. The other answer is not; it is about promoting the legitimacy of administrative governance. The two functions have different implications for the design of administrative process and judicial review of agency action. After identifying these two functions, the paper turns to the everyday world of administrative law in an effort to discern which of these two views the law embraces. Examining two areas of law—standing and prejudicial error—yields two different answers. In one area (standing), the law embraces a fairly instrumental view of the function of participation; in the other area (prejudicial error), the law veers more toward a non-instrumental view.