Nondelegation Doctrin for the Digital Age?

Abstract

"This is the Duke Law Journal's thirtieth annual administrative law issue. Its title, "Governance of the Internet," promises some link between the Internet and the world of administrative law. Doubtless there are many possible connections to discuss; electronic versions of notice and comment, say, or the use of the Internet to make administrative functions more efficient, convenient, and transparent. These topics are worthy, I am sure, but they are also intensely dull. Yes, the Internet will have an effect on the administrative state, just as the Eisenhower freeway building program had an effect on the administrative state--helping to create the unified national market, the mobile population, and the mercurial movements of capital that form the context for today's administrative law. Yet one would hardly have a symposium on "Administrative Law and the I-95 Freeway." To be interesting, thought-provoking, or just useful, a symposium has to offer more of a connection between administrative law and the Internet than simply the ampersand in the title. Does the Internet transform the regulatory state in ways that administrative law must recognize and respond to? Are the descriptive and normative assumptions on which the doctrinal framework rests changed in the same way that the New Deal changed underlying assumptions about economics, commerce, and the Constitution? I think that the answer to that question is "yes," although the road to that answer is circuitous and the main focus of the Symposium seems, at first, surprisingly narrow as the basis for such a claim."