The American administrative state suffers from widespread claims of normative illegitimacy because administrative agencies and their personnel are neither enshrined in the Constitution nor directly ...elected. As a result, Supreme Court Justices and commentators openly question whether agencies should be able to compel citizens to follow agency actions. Normative legitimacy is important to administrative agencies because it explains why people have moral duties to obey agency rules, including rules with which they may disagree, even though agencies lack the traditional hallmarks of democratic governance.
This Article answers the critics head-on by proposing a new theory of normative legitimacy for the administrative state called "relational fairness." Relational fairness states that all persons potentially affected by agency action must have the opportunity to deliberate with the agency during administrative decision-making according to certain procedural, relational, and substantive values. In contrast to previous theories that attempted to legitimate agencies by connecting them to other political institutions, relational fairness articulates how the administrative state can attain normative legitimacy in its own right by establishing a new democratic relationship between agencies and citizens.
Although some courts have shown implicit concern for relational fairness, fully adopting the theory would lead to important doctrinal and policy changes to improve the legitimacy of the American administrative state. Relational fairness leads to a deferential form of arbitrariness review that reduces the ability of judges to insert their own ideological ends, reintroduces the importance of regulating agency ex parte communications, and unifies legal rules on valid agency usage of guidance documents. The theory also argues notice-and-comment rulemaking is illegitimate and advocates for alternative informal rulemaking structures to improve the legitimacy of agencies.
Das Bundesverfassungsgericht ist zentraler Akteur für die Fortentwicklung des Verfassungsrechts in Deutschland. Die Wissenschaftlichen Mitarbeiter sind in die Arbeit des Gerichts intensiv ...eingebunden. Sie sind prädestiniert, Tendenzen und Linien der Rechtsprechung aufzuzeigen, zu systematisieren und zu erklären. In Band 5 geschieht dies wiederum durch die Darstellung aktueller Schwerpunkte der Rechtsprechung und ihrer systematischen Bezüge.
Vigorous debate exists among constitutional scholars as to the appropriate ‘modalities’ of constitutional argument, and their relative weight. Many scholars, however, argue that one important ...modality of constitutional argument involves attention to underlying constitutional purposes or ‘values’. In Australia, this kind of values-oriented approach has been advocated by leading constitutional scholars, and also finds support in the judgments of the High Court at various times, particularly during the Mason Court era. Much of the scholarly debate on constitutional values to date, however, focuses on whether the Court should in fact look to constitutional values in this way, not the kinds of values the Court should consider, given such an approach. This book responds to this gap in the existing scholarly literature, by inviting a range of leading Australian constitutional lawyers and scholars to address the relevance and scope of various substantive constitutional values, and how they might affect the Court’s approach to constitutional interpretation in various contexts. It is essential reading for anyone seeking a deeper understanding of Australia’s constitutional system. Volume 21 in the series Hart Studies in Comparative Public Law
Gathering an interdisciplinary range of cutting-edge scholars, this book addresses legal constitutions of value. Global value production and transnational value practices that rely on exploitation ...and extraction have left us with toxic commons and a damaged planet. Against this situation, the book examines law’s fundamental role in institutions of value production and valuation. Utilising pathbreaking theoretical approaches, it problematizes mainstream efforts to redeem institutions of value production by recoupling them with progressive values. Aiming beyond radical critique, the book opens up the possibility of imagining and enacting new and different value practices. This wide-ranging and accessible book will appeal to international lawyers, socio-legal scholars, those working at the intersections of law and economy and others, in politics, economics, environmental studies and elsewhere, who are concerned with rethinking our current ideas of what has value, what does not, and whether and how value may be revalued.
The results of a survey of 1,071 adults in the United States reveal that most consumers do not pay attention to, let alone understand, arbitration clauses in their everyday lives. The vast majority ...of survey respondents (over 97%) report having opened an account with a company that requires disputes to be submitted to binding arbitration (e.g., Netflix, Hulu, Cash App, a phone or cable company), yet most are unaware that they have, in fact, agreed to mandatory arbitration (also known as "forced arbitration"). Indeed, over 99% of respondents who think they have never entered into an arbitration agreement likely have done so. Over 92% of respondents report that they have never based a decision to use a product or service on whether the terms and conditions contain an arbitration agreement. When prompted, they largely endorse the following reasons: they were unaware of the arbitration clause, they did not read the terms and conditions, and they thought they had no choice but to agree to mandatory arbitration. Moreover, many respondents presume that if a dispute arises, they will still be able to access the public courts, notwithstanding that they agreed to the terms and conditions. Consumers are largely unaware of opportunities to opt out of mandatory arbitration. They generally do not pay attention to or retain information about the steps required to opt out successfully (e.g., contacting the company within a specified time period). Generally, consumers are unaware that companies like Cash App and Venmo (mobile payment systems utilized by nearly 60% of respondents) allow customers to opt out of mandatory arbitration if they act within a limited time period. Among the minority of respondents (21%) who stated that they had been given an opportunity to opt out, vanishingly few could name any of the steps required to opt out successfully. When presented with a run-of-the-mill contract, of the type consumers routinely encounter, most respondents did not take notice of the arbitration clause. Less than 5% of respondents could recall that the contract they were shown had said anything at all about arbitration. Furthermore, most consumers misperceive the consequences of signing a predispute arbitration agreement. Most mistakenly believe that, after agreeing to terms and conditions mandating binding arbitration, they can still choose to settle their dispute in court, have a jury decide their case, join a class action, and appeal a decision made based on a legal error. For instance, less than 5% of respondents correctly reported that they could neither appeal an erroneous decision to another arbitrator (or set of arbitrators) nor start all over again in court. Less than 1% of respondents correctly understood the full significance of the arbitration agreement, as indicated by their responses to questions about whether they retained the rights to sue, have a jury decide their case, access the public courts, and appeal a decision based on a legal error. In summary, consumers are generally unaware of arbitration clauses, and they tend to hold mistaken beliefs about how arbitration agreements affect consumers' procedural rights.
This book addresses the various ways in which modern approaches to the protection of national security have impacted upon the constitutional order of the United Kingdom. It outlines and assess the ...constitutional significance of the three primary elements of the United Kingdom’s response to the possibility of terrorism and other phenomena which threaten the security of the state: the body of counter-terrorism legislation which has grown up in the last decade and a half, the evolution of the law of investigatory powers, and (to the extent relevant to the domestic constitution) the law governing international military action and co-operation. On the basis of this, it demonstrates that national security as a good to be protected and promoted in contemporary Britain is reflected not merely in the emergence of a discrete body of law by which it is protected at home and abroad, but that the concern with national security has leaked into other areas of public law—areas which are not directly linked to terrorism and legal response to it, but which become (whether by accident or design) implicated in these endeavours, with significant and potentially grave consequences for the constitutional order generally. A renewed and strengthened concern for national security since 9/11 has, it is argued, dragged into its orbit a variety of constitutional phenomena and altered them in its image, giving rise to what we might call a national security constitution. Volume 4 in Hart Studies in Security and Justice
