scholarly journals Constraining Bureaucracy Beyond Judicial Review

Daedalus ◽  
2021 ◽  
Vol 150 (3) ◽  
pp. 155-171
Author(s):  
Christopher J. Walker
Keyword(s):  
Civil Society ◽  
Federal Government ◽  
Judicial Review ◽  
Administrative Law ◽  
Regulatory State ◽  
Judicial Doctrine

Abstract The modern regulatory state–and the field of administrative law that studies it–is in need of “deconstruction.” That does not mean that it should be dismantled entirely. This essay does not embrace the reformers' fixation on courts as the bulwark against agency overreach. Rather, this essay develops the concept of bureaucracy beyond judicial review: not only agency actions that statute or judicial doctrine precludes from judicial review, but also agency actions that are technically subject to judicial review yet effectively insulated from it. Appreciating the phenomenon of bureaucracy beyond judicial review should encourage us to rethink theories and doctrines in administrative law. If judicial review provides no safeguard against potential abuses of power in most regulatory activities, we must turn to other mechanisms. All three branches of the federal government must play their roles, as should civil society and the agencies themselves.

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.

Judicial Review and Merits Review: Are the Boundaries Being Eroded?

2017 ◽  
Vol 45 (4) ◽  
pp. 627-652
Author(s):  
Robin Creyke
Keyword(s):  
Judicial Review ◽  
Administrative Law ◽  
Federal Level ◽  
Law System

Courts and tribunals have distinct roles within the Australian administrative law system at the federal level, and to a lesser extent, in the states and territories. Questions of law are for the courts, and questions of fact are for the executive and tribunals. From time to time this orthodoxy is questioned. Suggestions are made that the courts are increasingly tending to intrude into the province of tribunals. Using cases as illustrations, this article explores five relevant jurisdictional areas —from appeals on a question of law to deference under the Administrative Decisions (Judicial Review) Act 1977 (Cth) s 10(2)(b)(ii)—to test the accuracy of the suggestion.

Liberating Malawi's Administrative Justice Jurisprudence from Its Common Law Shackles

2011 ◽  
Vol 55 (1) ◽  
pp. 105-127 ◽  
Author(s):  
Danwood Mzikenge Chirwa
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Administrative Law ◽  
The Common ◽  
The Right ◽  
Administrative Justice

AbstractThe 1994 Malawian Constitution is unique in that it, among other things, recognizes administrative justice as a fundamental right and articulates the notion of constitutional supremacy. This right and the idea of constitutional supremacy have important implications for Malawi's administrative law, which was hitherto based on the common law inherited from Britain. This article highlights the difficulties that Malawian courts have faced in reconciling the right to administrative justice as protected under the new constitution with the common law. In doing so, it offers some insights into what the constitutionalization of administrative justice means for Malawian administrative law. It is argued that the constitution has altered the basis and grounds for judicial review so fundamentally that the Malawian legal system's marriage to the English common law can be regarded as having irretrievably broken down as far as administrative law is concerned.

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 Conflict of Civil Society Movement and Government in the Process of Developing of The Job Creation Bill

PROPAGANDA ◽  
2021 ◽  
Vol 1 (1) ◽  
pp. 12-22
Author(s):  
M. Masad Masrur
Keyword(s):  
Conflict Resolution ◽  
Civil Society ◽  
Interest Groups ◽  
Judicial Review ◽  
Job Creation ◽  
Violent Conflict ◽  
Constitutional Court ◽  
Community Groups ◽  
Public Facilities ◽  
The Government

The discussion room for the Work Creation Bill is officially located at the DPR RI Building. The discussion, which involved various interest groups, was deemed insufficient to accommodate the “rejecting” aspirations expressed by various community groups. Several community groups who are members of various civil society movements, held demonstrations outside the DPR RI Building as a venue for discussion of the Job Creation Bill. Demonstrations that also took place in these areas have caused damage to public facilities. According to Habermas's opinion, this condition is the result of structural domination, where the ruling group directs various forms of policy with instrumental communication that will not create understanding. In agreement with Gramsci, in this case, there is a political hegemony between one group against another. The government, which has an interest in immediately completing the deliberation of the Job Creation Bill, through the power of political domination, seeks to exercise hegemony against the civil society movement, causing violent conflict. Conflict resolution in the discussion of the Work Creation Bill is structurally carried out by using the state law approach in accordance with the prevailing laws and regulations. In accordance with the mandate of the constitution, all matters relating to regulations, a judicial review can be carried out at the Constitutional Court.

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