Is the APA just the cost of a representative democracy that relies on checks and balances? Rubin says no, instead charging both the law itself and the way it continues to be applied with something akin to myopia or laziness. “Courts expand the adjudicatory implications of the statute because of their own familiarity with the adjudicatory process,” he writes. “The judicial model persists because of its familiarity, combined with the unfamiliarity of more modern administrative alternatives. In its persistence, however, it smuggles incremental … adversarial approaches into a comprehensive
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