Substitution Strategies

Abstract

Positive political theory (PPT) is not new to administrative law, but it is increasingly becoming part of the mainstream, as evidenced by the Harvard Law Review’s publication of Professor Stephenson’s Strategic Substitution Effect (SSE). Both the normalization of PPT and the publication of SSE are good for many reasons. One important reason is that criticisms of PPT in administrative law are beginning (although just barely) to push past a standard assortment of first order critiques. Historically, PPT administrative law work was subject to three types of objections. First, models were often assailed for using an unnecessarily complex technical apparatus to demonstrate a result that many readers found trivially true. Second, other critics complained that models made assumptions that were such radical oversimplifications of reality that they could not possibly provide actual insight into the reality of law and politics. Third, many models in administrative law historically produced results that fit so poorly with the world they knew that readers were forced to conclude that the entire PPT project was altogether fruitless — a failed endeavor based on faulty premises, foolish methodology, and fantastical predictions. If SSE is any indication, we are reaching a turning point, as the Article is subject to none of these criticisms — or at least neither of the first two. The basic setup of the model is straightforward and nearly intuitive, balancing technicality with parsimony. The Article is characteristically innovative and insightful — precisely the sort of work that is rapidly becoming associated with Professor Stephenson’s ideas and methods.