GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2026

Status

Working

Abstract

This article is a contribution to a symposium on the durability of the famous article that Visiting Professor (now Justice) Kagan wrote in 2001 in her successful effort to obtain a tenured position on the Harvard faculty. The title of the article was “Presidential Administration.” Professor Kagan described the history of efforts to govern the administrative state and argued in support of the highly personal and overtly political approach taken by her former boss, President Clinton.

Professor Pierce begins by discussing at length agency adjudication--an important topic that Professor Kagan discussed in only a few paragraphs. He concludes that Professor Kagan’s description of agency adjudication was inaccurate in important ways in 2001 and that she did not anticipate any of the massive changes in the legal and political environment in which agencies adjudicate disputes today.

Professor Pierce then discusses the issue that Professor Kagan emphasized in her famous article. She argued at length that President Clinton’s approach to governance of the administrative state, with its emphasis on personal control of agencies by White House politicians, was superior to President Reagan’s approach, with its emphasis on data and analysis performed primarily by civil servants with expertise in economics and policy analysis. He concludes that Justice Kagan almost certainly disagrees with virtually everything that Professor Kagan said.

GW Paper Series

2026-26

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