{"title":"15. Contracts","authors":"Timothy Endicott","doi":"10.1093/he/9780198804734.003.0015","DOIUrl":"https://doi.org/10.1093/he/9780198804734.003.0015","url":null,"abstract":"Contracts are used to structure the legal relationship between government and private service providers. Besides this, contract also forms a new model both for relationships between public agencies, and for the relationship between the government and the people it serves. The challenge for the government is to deliver services with integrity, with equity, and with efficiency. The challenge for administrative law is to provide forms of accountability that do what the law can do to promote those goals. This chapter discusses government by contract and proportionate administration, accountability and efficiency, capacity to contract, and how the law controls government contracts.","PeriodicalId":51730,"journal":{"name":"Administrative Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89843820","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"法学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"7. Discretion and deference","authors":"Timothy Endicott","doi":"10.1093/HE/9780198714507.003.0007","DOIUrl":"https://doi.org/10.1093/HE/9780198714507.003.0007","url":null,"abstract":"This chapter discusses how judges can defer in appropriate ways to administrative authorities on some issues, while still opposing abuses of power. The chapter explains why the courts defer massively to administrative authorities on some issues involving foreign affairs and national security, public expenditure, planning, and legal and political processes. The mere fact that the law has allocated the power to an administrative body gives rise to a presumption that a court should not interfere unless there is a ground for review other than that the court would have reached a decision. The extent to which a court ought to defer is determined by the three reasons for allocating power to an administrative body: the body’s expertise, its political responsibility, and/or its decision-making processes.","PeriodicalId":51730,"journal":{"name":"Administrative Law Review","volume":"100 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90066423","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"法学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"10. How to sue the government: judicial processes and judicial remedies","authors":"Timothy Endicott","doi":"10.1093/HE/9780198714507.003.0010","DOIUrl":"https://doi.org/10.1093/HE/9780198714507.003.0010","url":null,"abstract":"This chapter addresses the extraordinary process of judicial review and the remedies available to the court. The process and the remedies are compared to the process and remedies in ordinary claims (which can also be used to control administrative action). In their self-regulation in developing these complex processes, the challenge for judges is to keep things in proportion: the attempt to achieve due process in judicial control of administrative action is essential to the administration of justice. The chapter explains the irony of process, which was introduced in Chapter 4: the courts may need to provide forms of process that are excessive and wasteful in some cases, in order to protect the administration of justice.","PeriodicalId":51730,"journal":{"name":"Administrative Law Review","volume":"21 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73747944","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"法学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Fail to Comment at Your Own Risk: Does Issue Exhaustion Have a Place in Judicial Review of Rules?","authors":"Jeffrey S. Lubbers","doi":"10.2139/SSRN.2764937","DOIUrl":"https://doi.org/10.2139/SSRN.2764937","url":null,"abstract":"The classic version of the exhaustion-of-remedies requirement generally requires a party to go through all the stages of an administrative adjudication before going to court. However, the doctrine has developed a new permutation, covering situations where a petitioner for judicial review did follow all the steps of the administrative appeals process, but had failed to raise in that process the issues now sought to be litigated in court. In those cases, which have been called “issue exhaustion” cases, the thwarted petitioner will likely be out of luck since normally there is no further opportunity to raise the issue at the agency. In that sense, issue exhaustion bears some resemblance to standing-to-sue cases — a particular litigant is deemed unfit to challenge the agency’s action in court. Unlike remedy exhaustion, however, which only applies to agency adjudication, issue exhaustion can theoretically be applied to agency rulemaking. As this article will show, this has started to become a reality — to the potential detriment of the rulemaking process, if applied in an overbroad fashion.Although only two federal statutes explicitly require issue exhaustion in judicial review of rulemaking, there are many more generic exhaustion statutes that courts have begun to apply to rulemaking challenges. Some of the policy reasons for apply exhaustion principles to review of agency adjudications also apply to reviews of rulemaking, but not all. And there are some drawbacks to applying it to rulemaking challenges in certain types of cases. This paper, prepared for the Administrative Conference of the United States, reviews the relevant statutes, the developing caselaw, and suggests the need for certain limitations to applying issue exhaustion in judicial reviews of rules. The paper provided the foundation for Administrative Conference Statement #19, Issue Exhaustion in Preenforcement Judicial Review of Administrative Rulemaking, Adopted September 25, 2015","PeriodicalId":51730,"journal":{"name":"Administrative Law Review","volume":"70 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2016-09-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2764937","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68301800","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"法学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Inter-Agency Learning in US Regulatory Policymaking","authors":"Miranda Yaver","doi":"10.2139/ssrn.2817073","DOIUrl":"https://doi.org/10.2139/ssrn.2817073","url":null,"abstract":"While a number of scholars have evaluated the strategies driving congressional decisions to delegate regulatory authority to administrative agencies, the literature has been largely restricted to evaluating the relationship between Congress and its administrative agent. I argue that this presents an incomplete picture of implementation given that it is typically carried out by multiple administrative actors that interact in multiple contexts and that share political principals. Such arrangements for overlapping jurisdiction and interagency organizations provide opportunities for agencies to learn from one another about the constraints of the political environment within which they are operating. This paper provides a preliminary examination of the extent to which administrative agencies can learn from other agencies the preferences of shared political principals and use that information to reshape their regulatory strategies. Using original data on Court of Appeals litigation directed at administrative agencies from the 93rd to the 113th Congress, as well as congressional delegation to administrative agencies within the text of the Statutes at Large, I provide preliminary evidence that when an agency observes a closely-linked agency facing legal constraints, it reshapes its own regulatory strategy so as to provoke less costly litigation. The results pave the way toward further, more in-depth examination of the spillover effects of bureaucratic punishment and the ways in which this inter-agency learning takes place over time.","PeriodicalId":51730,"journal":{"name":"Administrative Law Review","volume":"139 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2016-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76584894","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"法学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Minimally Democratic Administrative Law","authors":"Jud Mathews","doi":"10.2139/SSRN.2736426","DOIUrl":"https://doi.org/10.2139/SSRN.2736426","url":null,"abstract":"A persistent challenge for the American administrative state is reconciling the vast powers of unelected agencies with our commitment to government by the people. Many features of contemporary administrative law — from the right to participate in agency processes, to the reason-giving requirements on agencies, to the presidential review of rulemaking — have been justified, at least in part, as means to square the realities of agency power with our democratic commitments. At the root of any such effort there lies a theory of democracy, whether fully articulated or only implicit: some conception of what democracy is about, and what democracy requires. While several conceptions of democracy have influenced administrative law over the years, administrative law has never come to terms with a strand of democratic thought that I term democratic minimalism. Democratic minimalists argue that conventional theories of democracy set unrealistic benchmarks to evaluate government practices, because they expect more than is reasonable of citizens, leaders, and institutions. Accordingly, minimalists seek to offer a less ambitious, more attainable account of democratic governance that nonetheless captures core normative commitments. This Article presents the first account of minimally democratic administrative law. The Article identifies the conceptions of democracy that have dominated thinking about administrative law to this point and highlights challenges to them before outlining a competing, minimalist conception of democracy. It then revisits contemporary debates over how courts should review agency action from a minimalist standpoint.","PeriodicalId":51730,"journal":{"name":"Administrative Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2016-02-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68280447","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"法学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"4. Due process","authors":"Timothy Endicott","doi":"10.1093/HE/9780198714507.003.0004","DOIUrl":"https://doi.org/10.1093/HE/9780198714507.003.0004","url":null,"abstract":"This chapter explains the overlapping ideas of natural justice, procedural fairness, and due process, and discusses the importance of comity between judges and administrative agencies. The elements of process are outlined: notice and disclosure, oral hearings, waiver, reconsideration, and appeals. Proportionality is presented as a general principle of the procedural duties of public authorities, and the chapter explains the three process values: procedural requirements can improve decisions, treat people with respect, and subject the administration to the rule of law. The chapter explains the irony of process: the law must sometimes require procedures that impose disproportionate burdens on administrative authorities, in order to protect due process. The chapter concludes with an explanation of discretion in process and of the potential dangers involved in administrative processes.","PeriodicalId":51730,"journal":{"name":"Administrative Law Review","volume":"40 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2015-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86010898","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"法学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"8. Substantive fairness","authors":"Timothy Endicott","doi":"10.1093/HE/9780198714507.003.0008","DOIUrl":"https://doi.org/10.1093/HE/9780198714507.003.0008","url":null,"abstract":"This chapter shows that judges must substitute their own judgment for that of an administrative authority on some issues, in order to give effect to the principle of legality. When there is reason for non-deferential judicial review, deference would mean abandoning the rule of law. The more interventionist grounds on which judges will control the substance of some decisions—relevance, proportionality, and legitimate expectations—may involve little deference, depending on the type of decision and the context in which it is made. Each of the interventionist doctrines gives the judges the opportunity to do justice for a claimant and to improve public administration. For the very same reasons, each doctrine poses a danger that the judges will make themselves into surrogate administrators by overextending the grounds of judicial review","PeriodicalId":51730,"journal":{"name":"Administrative Law Review","volume":"27 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2015-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74326733","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"法学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Administrative Law Through the Lens of Immigration Law","authors":"Jill E. Family","doi":"10.2139/SSRN.2009436","DOIUrl":"https://doi.org/10.2139/SSRN.2009436","url":null,"abstract":"Immigration law does lag behind in the advancement of public law, but not in all respects. While immigration law is idiosyncratic in many ways, this article finds immigration law in the administrative law mainstream when it comes to its troubles with nonlegislative rules (sometimes called guidance documents). There are concerns throughout administrative law that agencies use such rules to bind regulated parties practically, even if not legally, without the procedural protections of notice and comment. This article analyzes immigration troubles with nonlegislative rules and makes three main contributions. First, it casts new light on the negative effects of guidance documents by viewing administrative law through the lens of immigration law. In immigration law, the cons of guidance documents play out in the context of some of life’s most fundamental questions: where and with whom to live and to work. Second, by showing how administrative law manifests in immigration law, this article concludes that immigration law’s troubles cannot be divorced from the mainstream administrative law debate over nonlegislative rules. Third, this article also evaluates a procedure new to immigration law: the draft memorandum for comment. Through the draft memorandum for comment procedure, the public may comment on draft guidance documents, but is not afforded the full protections of notice and comment rulemaking. While the new procedure is a pragmatic and positive step for immigration law, this article highlights that nonlegislative rules are not the only administrative tool available and argues for greater priority for notice and comment rulemaking in immigration law.","PeriodicalId":51730,"journal":{"name":"Administrative Law Review","volume":"64 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2012-02-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2009436","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67847564","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"法学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Avoiding Normative Canons in the Review of Administrative Interpretations of the Law: A Brand X Doctrine of Constitutional Avoidance","authors":"Christopher J. Walker","doi":"10.2139/SSRN.1909304","DOIUrl":"https://doi.org/10.2139/SSRN.1909304","url":null,"abstract":"This Article explores the conflicting commands of modern constitutional avoidance (courts must construe ambiguous statutes not only to adopt a constitutional construction but to avoid constructions that raise constitutional questions) and Chevron deference (courts must defer to an agency’s reasonable interpretation of an ambiguous statute it administers). While courts and commentators have suggested that constitutional avoidance trumps Chevron deference (at either step one or two), this Article advocates that modern avoidance should play no role in the review of administrative interpretations of law. Once Congress has empowered an agency to interpret an ambiguous statutory provision, a court cannot simply invalidate the agency’s interpretation and replace it with one the court believes better avoids constitutional questions. Instead, if an agency’s reasonable interpretation raises constitutional questions, a court must determine whether the interpretation is indeed unconstitutional and thus an impermissible interpretation at Chevron step two. This approach constitutes a return to the classical doctrine of constitutional avoidance, and it finds support in the Supreme Court’s decision in National Cable & Telecommunications Ass’n v. Brand X Internet Services. As the Article illustrates in a variety of administrative contexts, this Brand X doctrine of constitutional avoidance is necessary to preserve a proper separation of powers between the courts, the Executive, and Congress. It is also justified under Dean Edward Rubin’s network theory of administrative law.","PeriodicalId":51730,"journal":{"name":"Administrative Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2012-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67778992","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"法学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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