THE PROCEDURE FETISH Bagley, Nicholas
Michigan law review,
12/2019, Letnik:
118, Številka:
3
Journal Article
The strict procedural rules that characterize modern administrative law are said to be necessary to sustain the fragile legitimacy of a powerful and constitutionally suspect administrative state. We ...are likewise told that they are essential to public accountability because they prevent factional interests from capturing agencies. Yet the legitimacy-and-accountability narrative at the heart of administrative law is both overdrawn and harmful. Procedural rules have a role to play in preserving legitimacy and discouraging capture, but they advance those goals more obliquely than is commonly assumed and may exacerbate the very problems they aim to fix. This Article aims to draw into question the administrative lawyer's instinctive faith in procedure, to reorient discussion to the trade-offs at the heart of any system designed to structure government action, and to soften resistance to a reform agenda that would undo counterproductive procedural rules. Administrative law could achieve more by doing less.
The article is devoted to a scientific and theoretical study of the principles of administrative legal proceedings in the updated conditions of the Ukrainian State development, based on the needs for ...high-quality provision and implementation of legal rights, freedoms and interests of individuals and legal entities in the field of public law relations. It has been established that the principles of administrative proceedings at the current stage of development of administrative procedural law should be understood as the basic, initial rules which are stipulated by the provisions of national legislation, as well as generally accepted provisions of international law and standards of administration of justice, and which determine the organisational and functional (procedural) conditions for the administration of justice in administrative cases, and which are reflected and enshrined in the relevant provisions of the Code of Administrative Procedure of Ukraine. It has been noted that by their functional purpose, the principles of administrative justice form a stable basis for the functioning of the mechanism of administrative and procedural regulation.
Based on the analysis of the existing scientific developments on this issue, the author supports and further develops the scientific position on determining the characteristic features inherent in the principles of administrative justice in the modern context, namely a) each principle is based on a certain idea, determined by the socio-legal and ideological values of public life, the state and law at this stage of development and functioning; b) the principles have an external expression, i.e. they are textually concentrated in the norms of administrative procedure legislation and reflect the content, essence and internal structure of administrative proceedings, the entire process of the dynamics of its implementation; c) the principles perform a safeguarding function, as they contribute to the main task of administrative proceedings to ensure the proper level of exercise and protection of individuals and legal entities of their rights, freedoms and legitimate interests from violations by public authorities; d) each principle should be logical and scientifically grounded, internally balanced, aimed at ensuring the orderly administration of justice in administrative cases, while not repeating the content of other principles of administrative justice and not contradicting each other.
China's food safety system is in crisis. Egregious scandals, as varied as the sale of liquor laced with Viagra and the distribution of fake eggs, reveal how regulatory practices have been stretched ...to their limit in the world's largest food production system. On Feeding the Masses focuses on the oft-cited but ultimately overlooked concept of scale to identify the root causes of China's regulatory failures in food safety. The 'politics of scale' framework highlights how regulators disagree on which level of government is best suited to regulate ('the scale of governance'), struggle to address multilevel tensions ('multidimensional scale integration'), and fail to understand how policies at one level of government can affect other levels of government in unexpected and costly ways ('scale externalities'). Drawing from over 200 interviews with food safety regulators and producers, the study provides one of the most comprehensive accounts of China's food safety crisis to date.
Automated process control has been used for a long time. Innovation and information technology achievements have made it possible to use automation in the State governance. Algorithm-based automated ...decisions are integral part of the concept of e-Government. Automated decisions are becoming more and more prevalent in modern society of the EU. Using automated decisions in public administration is a challenge for Administrative Law, because it has to evolve and keep up with the usage of new technologies, keep the legal balance between the cost-efficiency and operational flexibility of the State in general and at the same time ensure the protection of rights of individuals in each Member State and in the EU as a whole. Estonia is EU Member State and its public sector uses automated decisions but there are no direct legal provisions regarding what automated decision is, what are the conditions for issuing them, what are the safeguards to avoid the violation of rights of individuals etc. The right to issue automated decision is based only on the authorisation norm stipulated in a specific act regulating the field of activity of administrative authority. The Estonian Unemployment Insurance Fund is one of the administrative authorities which issues automated decisions in its field of activity. The aim of this paper is to examine and find out whether the automated decisions used by Estonian Unemployment Insurance Fund comply with the general principles of administrative procedure and the EU rules on data protection but also to identify aspects where legal adjustment is needed and propose legislative amendments. The paper is based on the analysis of relevant scientific books, articles, legal acts, supported by relevant case law and other sources.
Eighty years on, we are seeing a resurgence of the antiregulatory and antigovernment forces that lost the battle of the New Deal. President Trump's administration has proclaimed the "deconstruction ...of the administrative state" to be one of its main objectives. Early Trump executive actions quickly delivered on this pledge, with a wide array of antiregulatory actions and a budget proposing to slash many agencies' funding. Invoking the long-dormant Congressional Review Act, the Republican-controlled Congress has eagerly repealed numerous regulations promulgated late in the Obama Administration. Other major legislative and regulatory repeals are pending, and bills that would impose the most significant restrictions on administrative governance since the Administrative Procedure Act was adopted in 1946 -- like the proposed Regulatory Accountability Act -- now stand a chance of enactment. This resistance to administrative government reflects antigovernment themes that have been a consistent presence in national politics since President Reagan's election in 1980.
Judicial deference to executive statutory interpretation — a doctrine now commonly associated with the Supreme Court's decision in Chevron v. Natural Resources Defense Council—is one of the central ...principles in modern American public law. Despite its significance, however, the doctrine's origins and development are poorly understood. The Court in Chevron claimed that the roots of judicial deference stem from statutory interpretation cases dating to the early nineteenth century. Others, by contrast, have sought to locate Chevron's doctrinal roots in judicial review's origins in the writ of mandamus. According to the standard narrative, courts in the pre-Chevron era followed a multifactor and ad hoc approach to issues of judicial deference; there was little theory that explained the body of cases; and the holdings and reasoning of the cases were often contradictory and difficult to rationalize. This Article challenges the standard account. It argues that the Supreme Court in Chevron, and scholarly commentators since, have misidentified nineteenth-century statutory interpretation cases applying canons of construction "respecting" contemporaneous and customary interpretation as cases deferring to executive interpretation as such. It further argues that, although the standard for obtaining a writ of mandamus was central to judicial review in the early Republic, statutory developments in the latter half of the nineteenth century (significantly, the enactment of general federal-question jurisdiction in 1875) ultimately mooted the relevance of that standard. Finally, it discusses the intellectual challenges to the traditional interpretive framework beginning in the early twentieth century; the Supreme Court's embrace of these intellectual challenges in the early 1940s; and Congress's attempt in the Administrative Procedure Act's (APA) standard-of-review provision to reject the Court's interpretive experimentation and corresponding deviation from the traditional canons. The Article thus seeks to establish — contrary to the suggestion in Chevron and recent cases — that there was no rule of statutory construction requiring judicial deference to executive interpretation qua executive interpretation in the early American Republic. And it contends that the governing statute of administrative law—the APA—was intended to codify the traditional interpretive approach and to reject the experimentation of the 1940s Court. Taken together, these conclusions cast doubt on much of the received wisdom on the doctrinal basis for the rule announced in Chevron.
A comparative legal analysis of one of the stages of administrative procedure i.e. the stage of appeal against an administrative act has been carried out. The attention is focused on the study of the ...provisions of the FRG Law “On Administrative Procedure”, the Code of Administrative Procedure of Poland and the Law of Ukraine “On Administrative Procedure” regarding appealing against the results of administrative procedure. An analysis of the peculiarities of the mechanism for appealing against an administrative act within the framework of administrative procedure in Poland and Germany has been carried out, and a comparison has been made with the provisions of the Law of Ukraine “On Administrative Procedure”, and proposals have been provided for improving the provisions of the law which has not yet entered into force. It has been proved that the Law of Ukraine “On Administrative Procedure” should clarify the provisions on the subject of complaint consideration, given the lack of criteria to be taken into account when selecting the subject of complaint consideration. The Law provides for an alternative composition of the body which is authorised to consider complaints: 1) a higher-level administrative body, unless another entity is provided for by law; 2) a board for reviewing complaints.
We consider it expedient to move away from the concept of consideration of a complaint by a higher body, since administrative officials often violate the principle of impartiality and fairness when considering a complaint, and to establish that the subject of consideration of a complaint is a collective body – a commission formed by a higher-level administrative body, to provide for pre-trial resolution of a conflict (dispute), which involves individuals filing a complaint within the framework of an administrative appeal, as a mandatory condition, which will solve the problem of parallel judicial review. In order to expand the means of protection of rights and interests in the administrative procedure, it has been proposed to enshrine the right of a person to use mediation as an alternative to administrative appeal.
The concept of the circular economy (CE) is currently gaining impetus as a way to move towards sustainable, low‐carbon, resource‐efficient, and competitive economies. However, despite the potential ...benefits of CE activities, their implementation remains relatively rare. We use a cross‐sectional survey of European small and medium‐sized firms (SMEs) to identify the main barriers firms face to promote the CE, focusing specifically on the following: those related to a lack of resources (human and financial) and capabilities (expertise) and those related to the regulatory framework (administrative procedures and the costs of meeting the regulations). Our results indicate that it is the complexity of administrative/legal procedures and the costs of meeting regulations/legal standards that constitute the most significant barriers, whereas the lack of human resources is also perceived to be an obstacle by firms engaged in CE activities. Those obstacles may be considered revealed barriers, and it is only when the firms become involved in these activities that they actually perceive them. Furthermore, when we consider the breadth of CE activities, administrative procedures and regulations once again emerge as the most significant obstacles. Finally, we stress the need to distinguish between different CE activities given that the perception of barriers differs substantially across these activities. Firms undertaking a disruptive innovation redesigning products and services to minimize the use of materials are more likely to perceive all barriers as important. However, firms implementing such activities as minimizing waste, replanning energy usage, and using renewable energy only perceive those obstacles related to administrative procedures and regulations.
Twenty years ago, Justice Elena Kagan published 'Presidential Administration' in the 'Harvard Law Review'. Seventy-five years ago, President Harry Truman signed the 'Administrative Procedure Act' ...(APA). The most important statute in administrative law and Kagan's enormously influential article are like ships passing in the night. Kagan interrogated the fundamental question of how to control agency discretion. Yet she engaged with the APA only in passing. Her failure to recognize the APA's significance yielded an analysis that, with the benefit of twenty years' hindsight, stands as an apologia for the United States' continuing slide toward authoritarianism.
