U.S. Administrative Law: A Model for Global Administrative Law?

I INTRODUCTION This Article examines the potential for drawing on U.S. administrative law in the development of a global administrative law (1) to secure greater accountability for the growing exercise of regulatory authority by international or transnational governmental decisionmakers in a wide variety of fields. U.S. administrative law and practice might form one useful point of departure for developing both "top down" and "bottom up" approaches to understanding and further developing global administrative law. A global administrative law must, of course, draw on legal principles and practices from many domestic and regional legal systems and traditions, as well as from sources in international law. Accordingly, the U.S.-based perspective offered in this Article is only one of many that must be considered. The past several decades have witnessed an explosive development of a great variety of international economic and social regulatory regimes. (2) These regimes have been created in response to the rise of a global market economy (itself constructed through private and public international law regimes), the consequences of economic, social, environmental, informational, and other forms of interdependence, and the perceived inadequacies of purely national solutions in the problems generated by those consequences. These regulatory regimes encompass a wide variety of subject areas, including trade; finance and banking; environment, health, and safety; pharmaceuticals; transportation and communications; conditions on financial assistance; human rights; and unlawful or undesirable activities. These regimes respond to the failures of both markets and of decentralized national systems of regulation to secure important economic and social values. They also often include bodies that are administrative in character and that make regulatory decisions and create regulatory law that is domestically implemented. As Kingsbury, Krisch and Stewart explain in "The Emergence of Global Administrative Law," (3) the traditional paradigms of international law and of administrative law at the domestic level cannot adequately account for or address these new global regulatory regimes, which are creating a new field of global administration and administrative law. How can these global regulatory regimes be made accountable to the actors or publics whose interests they are supposed to serve? This is the question being addressed by new, emerging forms of global administrative law. Putting the issue in terms of accountability immediately raises the questions of to whom account is due, and by what means. (4) One approach is to ensure that administrative decisionmakers implementing a global regulatory regime--which can include domestic administrative officials implementing global regulatory norms as well as officials at the global level--are faithful to that regime and the states that have established it. Another is accountability to those ultimately subject to regulation, including private individuals and entities, business firms, and in some cases NGOs, in order to ensure that their rights are secured and their interests respected. A third approach is accountability to the broader publics, either domestic or global, that are protected or otherwise affected by the regime. It must also be borne in mind that administrative law is only one means among many others that can be deployed to promote accountability and help to ensure that global regulatory regimes in fact serve their justificatory ends, raising the question of its appropriate role in relation to other mechanisms. (5) Further, what should the normative ambition of global administrative law be? Should it aim to ensure the smooth and effective instrumental functioning of global regulatory regimes? Should it ensure that administrative agents are faithful to their principals, however defined? Should it seek to protect the rights of private actors? …