行政法的终结:政府的不服从与司法的蔑视

IF 3.5 2区 社会学 Q1 LAW
N. Parrillo
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引用次数: 16

摘要

行政法学者主要关注审查联邦政府行动的诉讼,同时假设,如果原告赢得此类诉讼,政府将按照法院的指示行事。但事实上,联邦政府对法院命令的遵守是不完美和令人担忧的,尤其是在命令迫使政府采取积极行动的情况下。这样的命令可能会使联邦机构的资源紧张,干扰其其他法律要求的任务,并迫使其在几乎没有信息的情况下做出决定。受到此类命令打击的机构通常会警告法官,它迫切需要更多的自由度和时间来遵守。法官们态度缓和,放松态度,延长最后期限。“赢得”诉讼的原告发现,这场胜利只是一场艰难谈判的开始,这场谈判可能会拖上数年。这些合规谈判鲜为人知。关于它们的基本问题尚未探索,包括最基本的问题:结局是什么?也就是说,如果法官得出结论,认为该机构拖延太久,要求太多,她最终能做些什么让该机构遵守吗?最终,法官能做的和对待任何不听话的诉讼当事人一样:认定该机构(及其高级官员)藐视法庭。但法官真的会做出这样的藐视法庭的裁决吗?如果是这样的话,法官能否将这些调查结果与罚款和监禁的制裁结合起来,使藐视法庭行为对私人当事人具有效力?如果没有,蔑视有什么用?文献对这些问题保持沉默,仅限于上诉判例法的传统研究方法无法解决这个问题。最高法院对这个问题没有意见,尽管上诉法院已经多次处理这个问题,但他们处理这个问题的方式是有意避免开立明确和普遍的先例。通过对数千份意见(尤其是地区法院的意见)、案卷、案情摘要和其他文件的审查,再加上档案研究和采访,本文首次对联邦法院如何处理联邦政府的抗命行为进行了全面评估。它得出了四个结论。首先,联邦司法机构愿意发布针对机构和官员的藐视法庭调查结果。其次,尽管几名联邦法官认为他们可以(并试图)对这些调查结果进行制裁,但高等法院几乎完全不愿意允许制裁,有时会在最后一刻采取行动,挽救一个机构免于遭受预算紧张的罚款或其高级官员免于入狱。第三,尽管高等法院在除少数小案件外的所有案件中都坚决阻挠制裁,但它们还是竭尽全力避免宣布制裁是绝对不可用的,故意使制裁问题处于不突出的状态,至少在名义上具有法律不确定性。第四,尽管藐视法庭的调查结果实际上没有制裁,但它们具有羞辱作用,即使威慑力不完善,也会带来实质性的威慑力。针对各机构的诉讼的效力取决于一种普遍的看法,即联邦官员根本不会违反法院命令,以及一种将任何违规行为认定为越轨行为的相应规范。蔑视调查结果,无论制裁如何,都是将该机构和官员指定为违规者并使其蒙羞,从而将这一规范武器化的一种手段。但是,如果法官做出了太多这样的调查结果,尤其是如果他们实施(不可避免地会引起公众关注)制裁,他们可能会破坏人们对官员总是遵守的看法,从而破坏他们这样做的规范。因此,司法机构有时可能会采取行动,以维护其拥有的实质性但有限的基于规范的权力。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
The Endgame of Administrative Law: Governmental Disobedience and the Judicial Contempt Power
Scholars of administrative law focus overwhelmingly on lawsuits to review federal government action while assuming that, if plaintiffs win such lawsuits, the government will do what the court says. But in fact, the federal government’s compliance with court orders is imperfect and fraught, especially with orders compelling the government to act affirmatively. Such orders can strain a federal agency’s resources, interfere with its other legally-required tasks, and force it to make decisions on little information. An agency hit with such an order will often warn the judge that it badly needs more latitude and more time to comply. Judges relent, cutting slack and extending deadlines. The plaintiff who has “won” the suit finds that victory was merely the start of a tough negotiation that can drag on for years. These compliance negotiations are little understood. Basic questions about them are unexplored, including the most fundamental: What is the endgame? That is, if the judge concludes that the agency has delayed too long and demanded too much, is there anything she can do, at long last, to make the agency comply? What the judge can do, ultimately, is the same thing as for any disobedient litigant: find the agency (and its high officials) in contempt. But do judges actually make such contempt findings? If so, can judges couple those findings with the sanctions of fine and imprisonment that give contempt its potency against private parties? If not, what use is contempt? The literature is silent on these questions, and conventional research methods, confined to appellate case law, are hopeless for addressing it. There are no opinions of the Supreme Court on the subject, and while the courts of appeals have handled the problem many times, they have dealt with it in a manner calculated to avoid setting clear and general precedent. Through an examination of thousands of opinions (especially of district courts), docket sheets, briefs, and other filings, plus archival research and interviews, this Article provides the first general assessment of how federal courts handle the federal government’s disobedience. It makes four conclusions. First, the federal judiciary is willing to issue contempt findings against agencies and officials. Second, while several federal judges believe they can (and have tried to) attach sanctions to these findings, the higher courts have exhibited a virtually complete unwillingness to allow sanctions, at times swooping down at the eleventh hour to rescue an agency from incurring a budget-straining fine or its top official from being thrown in jail. Third, the higher courts, even as they unfailingly thwart sanctions in all but a few minor instances, have bent over backward to avoid making pronouncements that sanctions are categorically unavailable, deliberately keeping the sanctions issue in a state of low salience and at least nominal legal uncertainty. Fourth, even though contempt findings are practically devoid of sanctions, they have a shaming effect that gives them substantial if imperfect deterrent power. The efficacy of litigation against agencies rests on a widespread perception that federal officials simply do not disobey court orders and a concomitant norm that identifies any violation as deviant. Contempt findings, regardless of sanctions, are a means of weaponizing that norm by designating the agency and official as violators and subjecting them to shame. But if judges make too many such findings, and especially if they impose (inevitably publicity-grabbing) sanctions, they may risk undermining the perception that officials always comply and thus the norm that they do so. The judiciary therefore may sometimes pull its punches to preserve the substantial yet limited norm-based power it has.
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来源期刊
CiteScore
2.90
自引率
11.80%
发文量
1
期刊介绍: The Harvard Law Review is a student-run organization whose primary purpose is to publish a journal of legal scholarship. The Review comes out monthly from November through June and has roughly 2,500 pages per volume. The organization is formally independent of the Harvard Law School. Student editors make all editorial and organizational decisions and, together with a professional business staff of three, carry out day-to-day operations. Aside from serving as an important academic forum for legal scholarship, the Review has two other goals. First, the journal is designed to be an effective research tool for practicing lawyers and students of the law. Second, it provides opportunities for Review members to develop their own editing and writing skills. Accordingly, each issue contains pieces by student editors as well as outside authors. The Review publishes articles by professors, judges, and practitioners and solicits reviews of important recent books from recognized experts. All articles — even those by the most respected authorities — are subjected to a rigorous editorial process designed to sharpen and strengthen substance and tone.
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