Judicial Review and the Uncertain Appeal of Certainty on Appeal

In their Article Judicial Incentives and Indeterminacy in Substantive Review of Administrative Decisions, Sidney A. Shapiro and Richard E. Levy have raised in an intriguing way some panoramic questions about the role of judicial review in administrative law. They offer both an ambitious theory of judicial behavior and a proposed rewrite of section 706 of the Administrative Procedure Act (APA), the scope of review section. However the author neither favors the specific statute they offer nor believes that Congress should be asked to consider any revision of section 706

Rulemaking Inaction and the Failure of Administrative Law

The Trump administration may be the first presidency to go four years without promulgating new significant regulations to protect people and the environment. Although administrative law protects regulatory beneficiaries when agencies revoke or modify previous rules, those protections evaporate when an agency rejects a rulemaking petition, fails to answer a petition for years, or fails to work on pending regulatory protections. In effect, the courts have outsourced agency accountability for rulemaking inaction to political oversight, but as a defense of the interests of regulatory beneficiaries, political accountability is the “Maginot Line” of oversight. Despite the difficulty of judging an agency’s claim that it has higher priorities or that it needs more time to make a decision, judges should require more detailed explanations. Although less trusting judicial review is not without its problems, the current approach of abject deference to agency inaction ignores Congress’ commitment to protect people and the environment as specified in an agency’s mandate

The Enlightenment of Administrative Law: Looking Inside the Agency for Legitimacy

This article’s investigation into the “agency for legitimacy” proceeds in five steps: Part I introduces the concept of “administrative constitutionalism,” which encompasses the debate over what should be the role and nature of public administration to ensure its legitimacy. It then lays out the elements of the rational-instrumental and deliberative-constitutive paradigms and explains how they contribute to administrative constitutionalism respectively from the outside-in and inside-out. Part II provides a brief history of administrative constitutionalism, which reveals there have been ongoing tensions between two paradigms—and thus between outside in and inside out accountability—since the 1880s. Part III elaborates on the authors’ argument that the current emphasis on the rational-instrumental model has been administrative constitutionalism unsustainable. Part IV argues that acknowledging and developing the deliberative-constitutive paradigm will strengthen administrative constitutionalism by admitting the existence of agency discretion and by looking for realistic ways to make it accountable. Finally, Part V offers a case study in how the deliberative-constitutive paradigm can contribute to administrative constitutionalism.The Kay Bailey Hutchison Center for Energy, Law, and Busines

Judicial Incentives and Indeterminacy in Substantive Review of Administrative Decisions

In the Chevron and State Farm cases the Supreme Court announced what appeared to be controlling standards for substantive review of administrative decisions. Instead, the Chevron framework has broken down, and State Farm has been all but ignored by agencies and the courts, including the Supreme Court. This article accounts for this breakdown by analyzing the impact of judicial incentives on substantive review in administrative law

Judicial Incentives and Indeterminacy in Substantive Review of Administrative Decisions

Uppsatsen tydliggör och beskriver innehållet i elva lokala överenskommelser (LÖK) mellan civilsamhället och offentlig sektor. Studien visar också hur relationen mellan parterna avspeglas i texterna. Uppsatsen visar också på hur olika idéer och synsätt i överenskommelserna kan få praktiska konsekvenser för civilsamhället