Judicial Review of Administrative Discretion in the Administrative State

2019 ◽  
Keyword(s):  
Judicial Review ◽  
Administrative State ◽  
Administrative Discretion

scholarly journals Das Verwaltungsrecht der Vereinigten Staaten von Amerika

2021 ◽  
Author(s):  
Eberhard Schmidt-Aßmann
Keyword(s):  
Public Participation ◽  
Judicial Review ◽  
Early Stage ◽  
Administrative Law ◽  
Freedom Of Information ◽  
Administrative State ◽  
Systematic Analysis ◽  
Democratic Ideals

US administrative law forms a body of law that is considered to be particularly ‘political’. From an early stage on, US administrative law has endeavoured to provide instruments and procedures that foster and implement democratic ideals and concepts; consequently, US ‘freedom of information’ and the standards of public participation in the rulemaking process have often served as a model for foreign administrative law systems. Nevertheless, the agency actions have constantly been questioned and disputed. This book offers a systematic analysis of the constitutional foundations as well as the procedures, of liability and judicial review in administrative matters, and it examines the legitimacy of the American ‘administrative state’.

scholarly journals Chevron at 30: Looking Back and Looking Forward

2018 ◽  
Author(s):  
Peter M. Shane
Keyword(s):  
Natural Resources ◽  
Judicial Review ◽  
Administrative Law ◽  
Review Symposium ◽  
Theory And Practice ◽  
Administrative State ◽  
Regulatory State ◽  
Thirtieth Anniversary ◽  
Scholarly Discussion ◽  
Looking Back

This Foreword introduces a Fordham Law Review symposium held in March 2014 to mark the thirtieth anniversary of Chevron U.S.A. v. Natural Resources Defense Council. One of the most-cited administrative-law decisions of all time, Chevron has sparked thirty years of scholarly discussion concerning what Chevron deference means, when (or even if) it should apply, and what impact it has had on the administrative state. Part I of the Foreword discusses the symposium contributions that address Chevron’s scope and application, especially in light of City of Arlington v. FCC. Part II introduces the contributions that explore empirically and theoretically Chevron’s impact outside of the judicial-review context -- i.e., its effect on legislative- and administrative-drafting theory and practice, its influence within the regulatory state more generally, and its adoption (or lack thereof) in state administrative law. Part III turns to the intersection of Chevron and federalism. Part IV concludes by grappling with the contributors’ diverse views on whether Chevron is indeed a big deal and, if so, whether it is a good or bad deal for the modern administrative state.

Part IV Separation of Powers, Ch.22 The Administrative and Regulatory State

2016 ◽  
Author(s):  
Somanathan TV
Keyword(s):  
Judicial Review ◽  
Constitutional Law ◽  
Separation Of Powers ◽  
Executive Branch ◽  
Administrative State ◽  
Regulatory State ◽  
Judicial Decisions ◽  
Regulatory Bodies ◽  
Regulatory Functions ◽  
Constitutional Jurisprudence

This chapter explores how India’s constitutional law has addressed the administrative and regulatory State as it has evolved outside the traditional branches of government, and how judicial review is exercised over it. It begins by providing a background on constitutional issues relating to the administrative State as it functions within the executive branch, before turning to a discussion of the major regulatory bodies that either are explicitly called ‘regulatory’ or exercise regulatory functions. It then considers the constitutional position of the administrative and regulatory State based on judicial decisions and on the Indian Constitution. It also examines the conceptual underpinnings of, and justification for, the regulatory State, along with some specific concerns arising from the regulatory State such as legal uncertainty and excessive delegation. The chapter concludes by analysing some of the issues associated with the emerging constitutional jurisprudence on the regulatory State.

scholarly journals Lights, Judges, Access: How Active Judicial Review of Discretionary Decisions Protects Access to Government Information

2013 ◽  
Vol 51 (1) ◽  
pp. 49 ◽  
Author(s):  
Vincent Kazmierski
Keyword(s):  
Judicial Review ◽  
Court Decisions ◽  
Access To Information ◽  
Government Information ◽  
Administrative Discretion ◽  
Limited Success

This article discusses the role of judicial review in access to information regimes in Canada. It provides a review of recent court decisions that show how the Canadian courts are actively supervising the exercise of administrative discretion over access to information. It argues that although efforts to reform Canada’s access to information legislation have so far been met with limited success, the judiciary has provided significant and important scrutiny, providing a key means of enforcing access to information rights in Canada.

scholarly journals Chevron Deference, Presidential Influence, and the Rule of Law in the Administrative State

2018 ◽  
Author(s):  
Peter M. Shane
Keyword(s):  
Decision Maker ◽  
Rule Of Law ◽  
Legal Interpretation ◽  
Administrative State ◽  
Administrative Discretion ◽  
Administrative Agency ◽  
White House ◽  
The Rule Of Law ◽  
Thirtieth Anniversary ◽  
Presidential Influence

This paper, prepared for a symposium marking the thirtieth anniversary of the Supreme Court's decision in Chevron v NRDC, argues that, despite the doctrine's acquiescence in broad administrative discretion, so-called Chevron deference is reconcilable with a conventional account of what the rule of law entails in the modern administrative state. In all but the rarest of cases, however, rule of law values imply that deference should be accorded or not entirely on the basis of the legal interpretation proffered by the administrative agency that is Congress’s designated administrative decision maker, which is typically not the White House. White House involvement in persuading an agency to adopt a non-arbitrary interpretation that the agency embraces and can defend based on reasons rooted in law obviously should not count against that interpretation. But White House involvement should not be thought to earn deference for a proffered legal interpretation, whether originally preferred by an agency or not, that otherwise appears unjustified under “hard look” review. If the White House steers the agency away from an earlier preferred, but less sound interpretation of law, then the negotiated view, if non-arbitrary, may be given deference. But if the White House steers an agency away from an earlier preferred agency interpretation that would have been deference-worthy and at least as sound (in the eyes of the court) as the White House view now being offered as the agency’s own, the court should remand for agency reconsideration unless the White House-preferred interpretation can be shown to reflect exceptional problems of agency coordination.

scholarly journals Sądowa kontrola decyzji organów podatkowych w sprawach ulg w spłacie zobowiązań podatkowych opartych na uznaniu administracyjnym

2021 ◽  
Vol 30 (4) ◽  
pp. 441
Author(s):  
Andrzej Niezgoda
Keyword(s):  
Public Administration ◽  
Judicial Review ◽  
Case Law ◽  
Point Of View ◽  
Administrative Discretion ◽  
The Public ◽  
Procedural Law ◽  
Tax Relief ◽  
The Law ◽  
Administrative Courts

<p>The article is of a scientific-research nature. The author discusses the problem of limits of judicial review of discretionary decisions made by taxation authorities, which aim at applying relief in payments of tax liabilities under Polish regulations and case-law of administrative courts. It may be noted that despite the issue of administrative discretion being discussed in the academic literature, the question of limits of judicial review in the practice of administrative courts still raises doubts. It is therefore reasonable to undertake the analysis of the main views formulated in the literature and the case-law of administrative courts addressing this problem, from the point of view of the limits of judicial review of discretionary decisions. The thesis of the article is that the nature of discretionary decisions on relief in payment of tax liabilities, determined by the function of administrative discretion, and, at the same time, the criteria set out in the law for judicial review of public administration, limit the role of the administrative court in examining the compliance with procedural law of the tax proceedings preceding the issuance of such a decision and the respecting by tax authorities of the fundamental values of the system of law expressed in the Polish Constitution. This is because they define the limits of administrative discretion, within which the choice of one of the possible solutions remains beyond the judicial review of the public administration. For the law, as it stands (<em>de lege lata</em>) there are no grounds for administrative courts, provided that the tax authorities respect the basic values of the legal system expressed in the Polish Constitution, to formulate assessments as to the circumstances and reasons justifying the granting or refusal to grant a tax relief, or its scope. The concept of internal and external limits of administrative discretion may therefore be useful for administrative court rulings.</p>

scholarly journals Legal control of discretionary powers in Ghana: Lessons from English administrative law theory

Afrika Focus ◽  
1998 ◽  
Vol 14 (2) ◽  
Author(s):  
Kwadwo B. Mensah
Keyword(s):  
Legal System ◽  
Judicial Review ◽  
Theoretical Basis ◽  
Attorney General ◽  
Administrative Law ◽  
Administrative State ◽  
Depth Analysis ◽  
Legal Control ◽  
Popular Party ◽  
Discretionary Powers

This paper develops along the following line. First, we shall attempt to explain what discretion is, why it has become very important in the modem administrative state, and the dangers that it poses in a democratic legal system. It then looks at the problems which have to be faced in justifying judicial review of discretion. It takes an in depth analysis of legal liberalism and functionalism. Aimed with these 'lenses', it attempts to explain the theoretical basis of two important Ghanaian cases, Re Akoto , and People's Popular Party v Attorney General (PPP v AG)'. It examines the provisions which regulate the use of discretionary powers in the Ghanaian 1993 Constitution and it looks at the choices we have to make from the various theories and the development of the administrative state in Ghana.KEY WORDS: functionalism, Ghana, judicial review, law, liberalism 

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