Working smart and hard? Agency effort, judicial review, and policy precision

2016 ◽  
Vol 29 (1) ◽  
pp. 69-96 ◽  
Author(s):  
Ian R Turner
Keyword(s):  
United States ◽  
Judicial Review ◽  
Formal Model ◽  
The United States ◽  
Congressional Oversight ◽  
Policy Choices ◽  
Administrative Agencies ◽  
Integral Role ◽  
Agency Policy

The lion’s share of policy in the United States is made by administrative agencies. Agencies not only make policy choices, they must also implement policy effectively. Oversight institutions play an integral role in the policymaking process by monitoring, through review of agency policy actions, both policymaking tasks. Through analysis of a formal model I develop a theory of policymaking between agencies and courts and show that review can impact agency effort choices even when bureaucratic subversion is not a concern. At times the court has no impact on this effort and the agency is unconstrained. However, when the agency’s effort dictates whether or not the court defers to the agency’s actions judicial review does affect effort decisions. In this setting, review can either strengthen or, counter-intuitively, weaken agency effort incentives. Implications for executive and congressional oversight are discussed in light of these results.

RESTRICTIONS ON JUDICIAL ELECTION CAMPAIGN SPEECH: SILENCING CRITICISM OF LIBERAL ACTIVISM

2004 ◽  
Vol 21 (2) ◽  
pp. 148-176 ◽  
Author(s):  
Lino A. Graglia
Keyword(s):  
United States ◽  
Judicial Review ◽  
Constitutional Law ◽  
The United States ◽  
Judicial Power ◽  
Election Campaign ◽  
Judicial Activism ◽  
Policy Choices ◽  
The World

Constitutional law in the United States is, for most practical purposes, the product of ‘judicial review’, the power of judges to disallow policy choices made by other officials or institutions of government, ostensibly because those choices are prohibited by the Constitution. This extraordinary and unprecedented power, America's dubious contribution to the science of government, has made American judges the most powerful in the world, not only legislators but super-legislators, legislators with virtually the last word. Because lawmaking power divorced from popular will is tyranny, most states have attempted to reconcile the lawmaking power of judges with representative self-government by subjecting all or some judges to some form of popular election. In all but four such states, judges, encouraged and supported by their fellow lawyers in the organized bar—would-be judges and beneficiaries of judicial power—have responded by adopting codes of judicial ethics that limit what candidates for election to judicial office are permitted to say. The effect is to undermine elections as a control on judicial power by limiting criticism of judicial activism, the misuse of judicial power.

scholarly journals An Overview of the United States Administrative Procedure Act

2020 ◽  
pp. 69-82
Author(s):  
Harold Kernt
Keyword(s):  
United States ◽  
The United States ◽  
Federal Courts ◽  
Private Firms ◽  
The Public ◽  
Administrative Procedure ◽  
Administrative Agencies ◽  
Policy Statements ◽  
Public Concerns ◽  
Agency Policy

For almost seventy-five years, the Administrative Procedure Act (APA) in the United States has set a procedural framework within which most federal administrative agencies must act. The APA lays out procedures that federal actors must follow in fashioning rules and in resolving adjudications, as well as the standards of review that federal courts must use when reviewing the agencies’ resolution of those adjudications and promulgation of rules. As a consequence the APA has been remarkably effective in ensuring that agency decisionmaking is responsive to public concerns and that the public has an outlet for voicing those concerns. Nonetheless, some of the exceptions carved out by Congress in the APA have created problematic gaps, failing to protect the regulated public adequately, particularly from agency policy statements and interpretations of statutes and regulations, which private firms and individuals cannot challenge directly but may affect their livelihoods.

Errors in Public Management and Congressional Oversight

2019 ◽  
Vol 34 (2) ◽  
pp. 29-50
Author(s):  
Lee Jongkon
Keyword(s):  
United States ◽  
Moral Hazard ◽  
Interest Groups ◽  
Public Management ◽  
Formal Model ◽  
The United States ◽  
Government Agencies ◽  
Fire Alarm ◽  
Police Patrol ◽  
Congressional Oversight

It is widely believed that “fire alarm” oversight (i.e., reactive oversight that responds to the complaints of interest groups) rather than “police patrol” oversight (i.e., precautionary congressional surveillance), better promotes the performance of government agencies by efficiently reducing bureaucratic moral hazard. However, fire alarm oversight can lead to bureaucrats being falsely accused by interest groups who provide biased information to members of Congress of failure to properly implement a policy, thereby causing an unnecessary administrative delay in public management. This article suggests a formal model that compares fire alarm and police patrol oversight and examines the development of congressional oversight mechanisms in the United States.

James Bryce and the Australian Constitution

2015 ◽  
Vol 43 (2) ◽  
pp. 177-200
Author(s):  
Stephen Gageler
Keyword(s):  
United States ◽  
Judicial Review ◽  
Constitutional Law ◽  
The United States ◽  
United States Constitution ◽  
Constitutional Development ◽  
Practical Operation ◽  
Responsible Government ◽  
Shed Light

James Bryce was a contemporary of Albert Venn Dicey. Bryce published in 1888 The American Commonwealth. Its detailed description of the practical operation of the United States Constitution was influential in the framing of the Australian Constitution in the 1890s. The project of this article is to shed light on that influence. The article compares and contrasts the views of Bryce and of Dicey; Bryce's views, unlike those of Dicey, having been largely unexplored in contemporary analyses of our constitutional development. It examines the importance of Bryce's views on two particular constitutional mechanisms – responsible government and judicial review – to the development of our constitutional structure. The ongoing theoretical implications of The American Commonwealth for Australian constitutional law remain to be pondered.

WHAT ARE CONSTITUTIONS, AND WHAT SHOULD (AND CAN) THEY DO?

2010 ◽  
Vol 28 (1) ◽  
pp. 1-24 ◽  
Author(s):  
Larry Alexander
Keyword(s):  
United States ◽  
Judicial Review ◽  
Constitutional Law ◽  
The United States ◽  
United States Constitution ◽  
Moral Rights ◽  
Constitutional Change ◽  
Principal Function ◽  
Fundamental Law

AbstractA constitution is, as Article VI of the United States Constitution declares, the fundamental law of the land, supreme as a legal matter over any other nonconstitutional law. But that almost banal statement raises a number of theoretically vexed issues. What is law? How is constitutional law to be distinguished from nonconstitutional law? How do morality and moral rights fit into the picture? And what are the implications of the answers to these questions for such questions as how and by whom should constitutions be interpreted? These are the issues that I shall address.Alexander proceeds as follows: In section I he takes up law's principal function of settling controversies over what we are morally obligated to do. In section II he then relate law's settlement function to the role of constitutional law. In particular, he discusses how constitutional law is distinguished from ordinary law, and he also discusses the role of constitutions in establishing basic governmental structures and enforcing certain moral rights. In section III he addresses the topic of constitutional interpretation, and in section IV the topic of judicial review. Finally, in section V, he discusses constitutional change, both change that occurs through a constitution's own rules for amendments and change that is the product of constitutional misinterpretations and revolutions.

Advanced Introduction to U.S. Environmental Law

2021 ◽  
Author(s):  
E. Donald Elliot ◽  
Daniel C. Esty
Keyword(s):  
United States ◽  
Environmental Governance ◽  
Environmental Law ◽  
The United States ◽  
State Law ◽  
Comprehensive Overview ◽  
Administrative Agencies ◽  
The Creation

Providing a comprehensive overview of the current and developing state of environmental governance in the United States, this Advanced Introduction lays out the foundations of U.S. environmental law. E. Donald Elliott and Daniel C. Esty explore how federal environmental law is made and how it interacts with state law, highlighting the important role that administrative agencies play in the creation, implementation, and enforcement of U.S. environmental law.

Conclusion The American and Westminster Models

2021 ◽  
pp. 391-396
Author(s):  
Steven Gow Calabresi
Keyword(s):  
United States ◽  
Human Rights ◽  
United Kingdom ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Common Law ◽  
The United States ◽  
State Of Emergency ◽  
The United Kingdom ◽  
European Court

This concluding chapter identifies the four major causes of the growth and origin of judicial review in the G-20 common law countries and in Israel. First, the need for a federalism umpire, and occasionally a separation of powers umpire, played a major role in the development of judicial review of the constitutionality of legislation in the United States, in Canada, in Australia, in India, and most recently in the United Kingdom. Second, there is a rights from wrongs phenomenon at work in the growth of judicial review in the United States, after the Civil War; in Canada, with the 1982 adoption of the Canadian Charter of Rights and Freedoms; in India, after the Indira Gandhi State of Emergency led to a massive trampling on human rights; in Israel, after the Holocaust; in South Africa, after racist apartheid misrule; and in the United Kingdom, after that country accumulated an embarrassing record before the European Court of Human Rights prior to 1998. This proves that judicial review of the constitutionality of legislation often occurs in response to a deprivation of human rights. Third, the seven common law countries all borrowed a lot from one another, and from civil law countries, in writing their constitutions. Fourth, and finally, the common law countries all create multiple democratic institutions or political parties, which renders any political attempt to strike back at the Supreme Court impossible to maintain.

Other Prerogative Powers

2020 ◽  
pp. 213-232
Author(s):  
Michael W. McConnell
Keyword(s):  
United States ◽  
Judicial Review ◽  
The United States ◽  
National Government ◽  
Habeas Corpus ◽  
The Church

This chapter focuses on the Convention and the Committee of Detail that addressed and allocated every prerogative power of the Crown to the president or to Congress or denied the power to the national government altogether. It looks at the significant categories of prerogative power and emphasizes that the framers' treatment of lesser powers is often interesting and revealing. It also mentions the Habeas Corpus Acts of 1640 and 1679 that effectively ended the practice of early monarchs asserting authority to imprison subjects without legal redress by guaranteeing judicial review. The chapter reviews the substantial prerogative powers of the king in his capacity as the supreme governor of the “Church by Law Established.” It identifies the prerogative powers that devolved upon the United States and eventually became nongovernmental.

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