Abstract

The Legitimacy of US Administrative Law and the Foundations of English Administrative Law: Setting the Historical Record Straight

Highlights

  • Philip Hamburger recently posed a provocative challenge to administrative law in the USA, as attested to by the title to the book, which asks whether administrative law is unlawful.[1]

  • His thesis is grounded in English administrative law, as it developed in the seventeenth century and eighteenth centuries, when lawyers in the American colonies would have been familiar with it

  • It is by the same token fitting to subject this analysis to close critical scrutiny, which is the purpose of this article. This is more especially so given that there is much that is imperfectly understood about English doctrinal history in this area, and the misconceptions in this respect bear analogy to those revealed in Jerry Mashaw’s seminal work on the foundations of US administrative law.[2]

Read more

Summary

INTRODUCTION

Administrative law is rightly regarded, together with constitutional law, as one of the twin pillars of public law. The discussion begins with Hamburger’s thesis on “extralegal adjudication”, which he derives from early English law His argument contains an expansive dimension, in that it is based on an elision between prerogative and administrative adjudication. Hamburger’s argument contains, as in the context of rulemaking, a qualifying dimension, in which he limits the force of his principal argument concerning “extralegal adjudication”, through definition of the term judicial This aspect of the argument is beset with conceptual difficulty and does not cohere with the reality of administrative adjudication in England. The message from this article is that whatsoever US courts and commentators choose to make of Philip Hamburger’s thesis in the modern day they should not believe that it represents the legal and constitutional realities from England that American colonists, or the framers of the American constitution, would have been familiar with

DOCTRINAL AND INSTITUTIONAL FOUNDATIONS
Doctrinal Foundations
Institutional Foundations
RULEMAKING
The Thesis on Extralegal Legislation
The Expansive Dimension
The Qualifying Dimension
The Reality of Rulemaking
Excise
The Thesis on Extralegal Adjudication
The Reality of Administrative Adjudication
Bankruptcy
CONCLUSION
Full Text
Published version (Free)

Talk to us

Join us for a 30 min session where you can share your feedback and ask us any queries you have

Schedule a call