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Rights in the Federal Administrative State, 92 Yale Law Journal 7 (1983)


It is a first principle of American constitutionalism that the ultimate non-violent protection of individual rights from governmental encroachment resides in an independent judiciary. A similar ideal of "judicial review" permeates American administrative law. In the end, the citizen, indeed any "person," it is thought, may call administrators to account in court and thereby protect his, her, or its rights. This Article explores a group of related developments that suggest the extremely fragile character of that judicial protection. These converging clusters of cases illustrate the basic dependence of the judiciary on the legislative and administrative branches of government for the very conception of law that animates judicial judgment. And, if that is true, then an activist state-a state that emphasizes the administration of social and economic life in pursuit of collective ends-will tend to redefine rights in ways that de-emphasize individual legal remedies. In such a state, the judiciary will ultimately adopt what I shall term here a "statist" conception of legal rights and legal personality, that is, a conception crucially dependent for its content on legislative definitions of public welfare and on the organizational imperatives of the state's administrative-governmental apparatus.

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