Judicializing the Administrative State

Judicializing the Administrative State PDF

Author: Hiroshi Okayama

Publisher: Routledge

Published: 2019-05-10

Total Pages: 319

ISBN-13: 1351393332

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A basic feature of the modern US administrative state taken for granted by legal scholars but neglected by political scientists and historians is its strong judiciality. Formal, or court-like, adjudication was the primary method of first-order agency policy making during the first half of the twentieth century. Even today, most US administrative agencies hire administrative law judges and other adjudicators conducting hearings using formal procedures autonomously from the agency head. No other industrialized democracy has even come close to experiencing the systematic state judicialization that took place in the United States. Why did the American administrative state become highly judicialized, rather than developing a more efficiency-oriented Weberian bureaucracy? Legal scholars argue that lawyers as a profession imposed the judicial procedures they were the most familiar with on agencies. But this explanation fails to show why the judicialization took place only in the United States at the time it did. Okayama demonstrates that the American institutional combination of common law and the presidential system favored policy implementation through formal procedures by autonomous agencies and that it induced the creation and development of independent regulatory commissions explicitly modeled after courts from the late nineteenth century. These commissions judicialized the state not only through their proliferation but also through the diffusion of their formal procedures to executive agencies over the next half century, which led to a highly fairness-oriented administrative state.

Judicial Fortitude

Judicial Fortitude PDF

Author: Peter J. Wallison

Publisher: Encounter Books

Published: 2018-10-16

Total Pages: 204

ISBN-13: 1641770090

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In this book, Peter J. Wallison argues that the administrative agencies of the executive branch have gradually taken over the legislative role of Congress, resulting in what many call the administrative state. The judiciary bears the major responsibility for this development because it has failed to carry out its primary constitutional responsibility: to enforce the constitutional separation of powers by ensuring that the elected branches of government—the legislative and the executive—remain independent and separate from one another. Since 1937, and especially with the Chevron deference adopted by the Supreme Court in 1984, the judiciary has abandoned this role. It has allowed Congress to delegate lawmaking authorities to the administrative agencies of the executive branch and given these agencies great latitude in interpreting their statutory authorities. Unelected officials of the administrative state have thus been enabled to make decisions for the American people that, in a democracy, should only be made by Congress. The consequences have been grave: unnecessary regulation has imposed major costs on the U.S. economy, the constitutional separation of powers has been compromised, and unabated agency rulemaking has created a significant threat that Americans will one day question the legitimacy of their own government. To address these concerns, Wallison argues that the courts must return to the role the Framers expected them to fulfill.

Judicial Review of Administrative Discretion in the Administrative State

Judicial Review of Administrative Discretion in the Administrative State PDF

Author: Jurgen de Poorter

Publisher: T.M.C. Asser Press

Published: 2020-08-14

Total Pages: 198

ISBN-13: 9789462653092

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This book deals with one of the greatest challenges for the judiciary in the 21st century. It reflects on the judiciary’s role in reviewing administrative discretion in the administrative state; a role that can no longer solely be understood from the traditional doctrine of the Trias Politica. Traditionally, courts review acts of administrative bodies implying a degree of discretion with quite some restraint. Typically it is reviewed whether the decision is non-arbitrary or whether there is no manifest error of assessment. The question arises though as to whether the concern regarding ensuring the non-arbitrary character of the exercise of administrative power, which is frequently performed at a distance from political bodies, goes far enough to guarantee that the administration exercises its powers in a legitimate way. This publication searches for new modes of judicial review of administrative discretion exercised in the administrative state. It links state-of-the-art academic research on the role of courts in the administrative state with the daily practice of the higher and lower administrative courts struggling with their position in the evolving administrative state. The book concludes that with the changing role and forms of the administrative state, administrative courts across the world and across sectors are in the process of reconsidering their roles and the appropriate models of judicial review. Learning from the experiences in different sectors and jurisdictions, it provides theoretical and empirical foundations for reflecting on the advantages and disadvantages of different models of review, the constitutional consequences and the main questions that deserve further research and debate. Jurgen de Poorter is professor of administrative law at Tilburg University and deputy judge in the District Court of The Hague. Ernst Hirsch Ballin is distinguished university professor at Tilburg University, professor in human rights law at the University of Amsterdam, and president of the T.M.C. Asser Institute for International and European Law. He is also a member of the Scientific Council for Government policy (WRR). Saskia Lavrijssen is professor of Economic Regulation and Market Governance of Network Industries at Tilburg University.

Judicial Review of Administrative Discretion in the Administrative State

Judicial Review of Administrative Discretion in the Administrative State PDF

Author: Jurgen C. A. Poorter

Publisher:

Published: 2019

Total Pages:

ISBN-13: 9789462653085

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This book deals with one of the greatest challenges for the judiciary in the 21st century. It reflects on the judiciary's role in reviewing administrative discretion in the administrative state; a role that can no longer solely be understood from the traditional doctrine of the Trias Politica. Traditionally, courts review acts of administrative bodies implying a degree of discretion with quite some restraint. Typically it is reviewed whether the decision is non-arbitrary or whether there is no manifest error of assessment. The question arises though as to whether the concern regarding ensuring the non-arbitrary character of the exercise of administrative power, which is frequently performed at a distance from political bodies, goes far enough to guarantee that the administration exercises its powers in a legitimate way. This publication searches for new modes of judicial review of administrative discretion exercised in the administrative state. It links state-of-the-art academic research on the role of courts in the administrative state with the daily practice of the higher and lower administrative courts struggling with their position in the evolving administrative state. The book concludes that with the changing role and forms of the administrative state, administrative courts across the world and across sectors are in the process of reconsidering their roles and the appropriate models of judicial review. Learning from the experiences in different sectors and jurisdictions, it provides theoretical and empirical foundations for reflecting on the advantages and disadvantages of different models of review, the constitutional consequences and the main questions that deserve further research and debate. --

Tocqueville's Nightmare

Tocqueville's Nightmare PDF

Author: Daniel R. Ernst

Publisher: Oxford University Press, USA

Published: 2014

Total Pages: 241

ISBN-13: 0199920869

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De Tocqueville once wrote that 'insufferable despotism' would prevail if America ever acquired a national administrative state. Between 1900 and 1940, radicals created vast bureaucracies that continue to trample on individual freedom. Ernst shows, to the contrary, that the nation's best corporate lawyers were among the creators of 'commission government'; that supporters were more interested in purging government of corruption than creating a socialist utopia; and that the principles of individual rights, limited government, and due process were designed into the administrative state.

Administrative Law and Governance in Asia

Administrative Law and Governance in Asia PDF

Author: Tom Ginsburg

Publisher: Routledge

Published: 2008-10-30

Total Pages: 395

ISBN-13: 1135970637

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This book examines administrative law in Asia, exploring the profound changes in the legal regimes of many Asian states that have taken place in recent years. Political democratization in some countries, economic change more broadly and the forces of globalization have put pressure on the developmental state model, wherein bureaucrats governed in a kind of managed capitalism and public-private partnerships were central. In their stead, a more market-oriented regulatory state model seems to be emerging in many jurisdictions, with emphases on transparency, publicity, and constrained discretion. This book analyses the causes and consequences of this shift from a socio-legal perspective, showing clearly how decisions about the scope of administrative law and judicial review have an important effect on the shape and style of government regulation. Taking a comparative approach, individual chapters trace the key developments in the legal regimes of major states across Asia, including China, Japan, Korea, Malaysia, Taiwan, Hong Kong, Indonesia, Singapore, the Philippines, Thailand and Vietnam. They demonstrate that, in many cases, Asian states have shifted away from traditional systems in which judges were limited in terms of their influence over social and economic policy, towards regulatory models of the state involving a greater role for judges and law-like processes. The book also considers whether judiciaries are capable of performing the tasks they are being given, and assesses the profound consequences the judicialization of governance is starting to have on state policy-making in Asia.

Judicial Control of Administrative Action

Judicial Control of Administrative Action PDF

Author: Louis Leventhal Jaffe

Publisher:

Published: 1965

Total Pages: 816

ISBN-13:

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Collection of articles on legal aspects and control of the administration of justice in the USA and examination of major aspects of the relationship between agencies of economic administration and other forms of public administration and courts of law - includes relevant jurisprudence.

Deference to the Administration in Judicial Review

Deference to the Administration in Judicial Review PDF

Author: Guobin Zhu

Publisher:

Published: 2019

Total Pages: 445

ISBN-13: 9783030315405

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This book investigates judicial deference to the administration in judicial review, a concept and legal practice that can be found to a greater or lesser degree in every constitutional system. In each system, deference functions differently, because the positioning of the judiciary with regard to the separation of powers, the role of the courts as a mechanism of checks and balances, and the scope of judicial review differ. In addition, the way deference works within the constitutional system itself is complex, multi-faceted and often covert. Although judicial deference to the administration is a topical theme in comparative administrative law, a general examination of national systems is still lacking. As such, a theoretical and empirical review is called for. Accordingly, this book presents national reports from 15 jurisdictions, ranging from Argentina, Canada and the US, to the EU. Constituting the outcome of the 20th General Congress of the International Academy of Comparative Law, held in Fukuoka, Japan in July 2018, it offers a valuable and unique resource for the study of comparative administrative law.

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