Administrative Judges Research Articles

Disharmonization in the Regulation of Transgenic Plants in Europe

Disharmonization in the Regulation of Transgenic Plants in Europe

The Argument of Rightness as an Element of the Discretionary Power of the Administrative Judge

The article concerns the situation of the judicial application of the law where the entity applying the law refers in a decision-making process to moral principles. The decision should be based on the directives of interpretation, which indicate the need for such a determination of the meaning of the applicable norms so that it remains in harmony with commonly accepted moral rules of the society. The equity (understood as rightness) has one more purpose; namely, it allows for the process of decision-making—and not just for the process of unifying the decisions—since the mere rule does not specify the algorithm of undertaking them. This rule thus assumes that it will be further specified by phronesis judge who in a given situation will determine—for the purposes of a particular decision—a hierarchy between the criteria of substantive justice “embedded” in this rule. The reference to equity (rightness) stands for the concretization of an unspecified general rule. We deal here with an indefinite general rule, the application of which is facilitated by a reference to rightness.

May, Should, or Do, Administrative Judges Participate in the Management of the Public Sphere in the Rule of Law?

The article concerns the actual impact of courts controlling the activity of public administration on the direction of its activities and the content of issued decisions. In particular, it concerns sovereign individual decisions that affect the sphere of civil rights and freedoms. The aim of the article is to seek an answer to the question of whether independent judges actually participate in the process of management in the public sphere, which is characterised by elements of politics and (regardless of the answer to this question) whether such participation is allowed or (even) necessary in modern rule of law states. The main argument is that regardless of whether the courts controlling the administration have reformatory or exclusive cassation powers, they influence the decision-making process in the public sphere. At the same time, such influence not only does not violate the fundamental values of the rule of law, but is even sometimes necessary. This does not mean that courts should interfere in the management processes in the public sphere in every case.

PTO Panel Stacking: Unblessed by the Federal Circuit and Likely Unlawful

In recent years, the United States Patent and Trademark Office (“PTO”) sought to control results in adjudication by its Patent Trial and Appeals Board (“PTAB”) through a process commonly described as “panel stacking.” In a “strong form” of this practice, the PTO Director or Director’s delegee generated a new panel of administrative judges to conduct rehearing proceedings after an initial panel produced a decision with which the Director or delegee disagreed. This Essay contends that this strong-form practice raises constitutional concerns under the Fifth Amendment’s Due Process Clause. Consequently, the doctrine of constitutional avoidance instructs that courts should understand the Patent Act to preclude strong-form panel stacking. Judges and commentators have repeatedly erred by citing a plurality opinion on panel stacking in In re Alappat as if the plurality opinion authoritatively held that the Patent Act authorizes panel stacking. This Essay seeks to correct that misconception and shows that, once one takes account of constitutional concerns, the Alappat judges’ recognition of statutory ambiguity effectively condemns strong-form panel stacking, rather than “blessing” it.

Technology Application of Normative Evidence for Resolving Administrative Disputes Concerning the Operation of Small Architectural Forms and Temporary Structures

under the conditions of decentralization of power in Ukraine, positive changes in the management of cities in the regions of the country, unfortunately, are accompanied by an increase in the number of disputes between citizens (entrepreneurs) and local self-government bodies regarding the operation of small architectural forms and temporary structures. In settling disputes these disputes, there is an ambiguity in the judicial practice of courts of various instances and the legal position of local authorities, that often leads to an imbalance of private and public interests. The general purpose of this article is the formulation of a normatively grounded position, suitable for use in practical activities of local self-government bodies, state bodies, jurists, lawyers and administrative judges on the issues of functioning of small architectural forms and temporary structures that require resolution in the process of municipal and state administration and while the exercising justice. The methodology of the research was based on the use of normative theory of positive law with the use of mainly logical and semantic, comparative and legal methods, as well as the method of legal modeling and sociological survey. The main results of the study are: the definition of inconsistencies of legal acts and regulatory gaps in the mechanism of legal regulation of relations in the sphere of the functioning of small architectural forms and temporary structures; distinguishing normative features of unauthorized objects of urban development; determined the scope and defined the line of competence of local self-government bodies in rule-making and management in the sphere of the functioning of small architectural forms and temporary structures.

El control de convencionalidad y el diálogo judicial frente al medio ambiente como sujeto de protección y reparación

El presente artículo tiene por objeto el control de convencionalidad y su ejercicio por los jueces administrativos, pretendiendo en este caso efectuar un análisis del control de convencionalidad y la doctrina conocida como diálogo interjurisdiccional que propenda por una concepción de mayor garantía del medio ambiente como sujeto de protección y reparación. Para ello, se utilizó un marco metodológico de carácter cualitativo con la técnica de análisis de discurso —de carácter jurisprudencial— sobre múltiples providencias de altas cortes colombianas y la Corte Interamericana de Derechos Humanos, así como de reconocidos doctrinarios, que permitan fortalecer la propuesta, concluyendo que este diálogo sea activo con una modificación de la dirección en que se efectúe y que podrían ser las altas cortes nacionales las que fijen precedentes que la Corte Interamericana pueda tomar como criterio hermenéutico relevante que tengan por fin la conformación de un ius commune interamericano en favor del medio ambiente como sujeto autónomo de protección y reparación.

Ideology beyond partisanship: The behavior of judges on freedom of information cases in Chile

Based on an original database on votes in non-unanimous decisions (n = 502) in an independent administrative tribunal resolving Freedom of Information (FOI) cases between 2009 and 2017 in Chile, this research tests whether partisanship and ideology explain judges' decisions on administrative information disclosure. We specify a logistic model with pairs cluster bootstrapped t-statistics to account for votes nested in judges and calculate correcting standard errors. The study indicates that when appointing FOI judges close to their parties, politicians cannot count with responsive same party judges to rule in their favor when resolving FOI disputes. Nonetheless, ideology is a strong predictor of judges' decisions when resolving FOI disputes related to privacy and commercial secrets. In doing so, the study enhances our understanding of the behavior of administrative judges working in agencies in charge of controlling the government and sheds light on the role of ideology on adjudication in FOI disputes -an area of law barely explored empirically.

The Expansion of Administrative Decision Meaning Based on Government Administration Law: a Dispute Submission Process Approach

The establishment of Government Administration Law brings significant change to the competence of the previously restricted Administrative Court to become expanded. This study aims to find the philosophical considerations from the extension of Administrative Decision meaning on Government Administration Law, to classify the legal implication arising from the regulation of the expansion of administrative decision meaning towards dispute submission process in Administrative Court and to formulate ideal attitude of the State Administrative Judge in resolving State Administrative Disputes. This is a combination of normative and empirical legal research. The study indicated that the legislator main consideration in regulating the expansion of administrative decision meaning on Government Administration Law is to expand the absolute competence of Indonesian Administrative Court which previously felt very narrow. The implication arises after new regulation consists of: the expansion of Administrative Court adjudicate authority for factual actions, subject expansion that have the authority to issue Administrative Decision, the expansion of the Administrative Court adjudicate authority over Administrative Decision which has a legal consequences although still need the approval from above instance, the regulation that Administrative Decision can be sued through the Administrative Court of any potential loss that may arise by the issuance of its Administrative Decision and the expansion towards the parties who have a chance to field a State Administrative accusation. The ideal attitude of State Administrative Judge is the judge should remain based on the strong theoretical concepts of the law so can create understanding and attitude in handling a case in Indonesian Administrative Court.

Vladavina prava i legitimnost upravnih sudaca

The way in which the Republic of Croatia founds the legitimacy of judiciary duties and thereby enhances the rule of law is analyzed in this paper. It is aimed in particular at the legitimacy of administrative judges upon resolving administrative disputes and passing judgements. To this aim, the independence of administrative judges is considered as well as the mechanisms to which the independence of judicial powers contribute. Then, the way judges are appointed is analyzed, which results in whether citizens can trust the judges’ expertise and moral values. Also analyzed is the mechanism for establishing the expertise of judges through evaluating judges' implementation of duties. Finally, the legitimacy of administrative judges' decisions is also considered through the composition of the court in first instance administrative judicial decisions and through the trust given by citizens in the resolution of administrative disputes according to the individual judge. How administrative court judges in the Republic of Croatia are appointed and assessed in the same way as judges of other regular or specialized courts and how the question of independent implementation of judicial duties correlates regardless of the court wherein the judge is appointed for judicial duty make up a large part of the conclusions related to all judges in the Republic of Croatia. This paper therefore in some way exceeds the very problem area of rule of law and administrative judge legitimacy.

Protecting Agency Judges in an Age of Politicization: Evaluating Judicial Independence and Decisional Confidence in Administrative Adjudications

Administrative judges, who serve in state and federal agencies, as opposed to a separate branch of government, are an understudied, and occasionally controversial, type of public administrator. Many who find themselves in administrative courts protest the agency judge’s lack of independence. According to critics, because agency judges are members of—and often evaluated by—the very agency with a vested interest in the case, they are subject to political influence and cannot possibly be an impartial arbitrator. In the United States, various approaches to addressing this concern have been employed. At the federal level, Congress grants some administrative judges statutory protections from agency evaluation. Most states have utilized an organizational independence approach by placing administrative judges in separate agencies dedicated to administrative adjudications. Via a national survey returned by 250 agency judges, this study compares perceptions of judicial independence and decisional confidence. It finds that administrative judges serving in independent agencies (known as central panels) report higher levels of judicial independence and more confidence their rulings will not be overturned. The theoretical implications are significant for public administration and administrative law scholars, especially those concerned about the politicization of administrative duties.

Is French Administrative Justice a Problem-Solving Justice?

France has a culture of problem-solving justice that is particularly evident in the field of criminal justice. The question may arise however, whether this is also the case in the field of administrative justice, which has a specific purpose directing it to verify whether the decisions of public administrations are legal and to quash them when they are not. The article investigates how the intervention of the French legislator and administrative case law have gradually developed legal tools and practices aimed at solving problems. Many of these tools and practices concern the implementation of alternatives to judgments that allow the parties to find an amicable solution, often with the help of the administrative judges. Yet there are also many tools that allow the judges to solve the problems through their court decisions. The article presents an analysis of the characteristics of French administrative justice as a problem-solving justice and questions the limits of this approach and its future evolution.

The New World of Agency Adjudication

In 1946, the Administrative Procedure Act (APA) set forth the criteria for “formal” adjudication, requiring an administrative law judge to make the initial determination and the agency head to have the final word. That is the lost world. Today, the vast majority of agency adjudications Congress has created are not paradigmatic “formal” adjudications as set forth in the APA. It turns out that there is great diversity in the procedures by which federal agencies adjudicate. This new world involves a variety of less-independent administrative judges, hearing officers, and other agency personnel adjudicating disputes. But, like in the lost world, the agency head retains final decision-making authority. In 2011, Congress created yet another novel agency tribunal — the Patent Trial and Appeal Board (PTAB) — to adjudicate patent validity disputes between private parties. Questions abound concerning the PTAB’s proper place in the modern administrative state, as its features depart from the textbook accounts of APA-governed “formal” adjudication. Many of these questions are working their way through the Federal Circuit and to the Supreme Court. Indeed, the Supreme Court recently held in Oil States Energy Services that PTAB adjudication does not unconstitutionally strip parties of their property rights in issued patents—while expressly leaving open many questions concerning the limits of administrative adjudication. This Article situates PTAB adjudication within administrative law’s larger landscape of agency adjudication. By surveying this new world of agency adjudication, we find that PTAB adjudication is not extraordinary. But we also identify one core feature of modern agency adjudication that is absent at the PTAB: the Director of the Patent and Trademark Office lacks final decision-making authority. To be sure, the Director has some power to influence outcomes: in the past, she has ordered rehearing of cases and stacked the board with administrative patent judges who share her substantive vision. But these second-best means of agency-head control raise problems of their own, including constitutional questions and inefficiencies in agency performance. This Article concludes by exploring alternative mechanisms that would remedy the lack of agency-head review at the PTAB.

Experts, Generalists, Laypeople -- and the Federal Circuit

A natural experiment is currently unfolding in the patent world. The same validity issues are sent to a diverse range of adjudicators: administrative patent judges, with technical and scientific expertise; district court judges, who range from classic legal generalists to de facto patent law specialists; and juries, composed of layperson novices. The findings made at the trial level, regardless of forum, are in turn reviewed by a singular controlling entity — the Court of Appeals for the Federal Circuit. This Article capitalizes on the current adjudicatory structure of patent law, analyzing more than two thousand Federal Circuit orders and opinions — each hand-coded for validity findings and their disposition on appeal issue-by-issue. The result is a uniquely complete and clear dataset, offering a window into these tribunals’ different mutual relationships — and one into the varying effects of expertise and specialization in the patent world overall. A straightforward empirical analysis of the data, moreover, challenges several longstanding and widespread anecdotal assumptions about patent adjudication. In brief, the data suggest that the Federal Circuit affirms findings made by the PTAB reliably more often than findings made by district court judges — particularly when the findings involve questions of fact rather than questions of law. Whether the district court judge (or district itself) has more prior experience with patent cases appears to be irrelevant. Whether the finding was made by a jury, on the other hand, is highly relevant, with those findings affirmed at the highest rate of all. Moreover, PTAB findings that invalidate patent claims are affirmed more often than findings that uphold patent claims. No similar pattern exists in district court appeals. And the underlying technological subject matter of the patent at issue does not seem to perceptibly influence results on appeal for either.

Organizing Technical Knowledge in Environmental and Planning Law Disputes in the Netherlands – the Foundation of Independent Court Experts in Environmental and Planning Law

In the Netherlands, the technical knowledge needed by judges to decide on environmental and planning law is organized in an atypical way. The Stichting Advisering Bestuursrechtspraak (STAB, Foundation of Independent Court Experts in Environmental and Planning Law) has the sole purpose of supplying the technical expertise needed by the administrative judges. One might question the need for such a, at first sight, relatively costly system. Furthermore, there may be concerns about the independence and impartiality of the STAB. This paper will explore the functioning of the STAB and discuss these possible concerns, mainly on the basis of the existing evaluation reports. It will be seen that the concerns are largely ill-founded and that the STAB is highly appreciated by its customers, the courts and by third parties. Although the existence of the STAB is due to specific historical circumstances, it could become a role model for other countries.

The "You Know Better" Dilemma of Administrative Judges in Environmental Matters – A Note on the German Legal Context

This paper points to the difficulties that arise due to the lack of scientific expertise among administrative judges sitting environmental cases in Germany. It explains the crucial role of expert opinions in environmental litigation and it briefly illustrates the discussion on a potential reform of the system of independent scientific expertise.

Responsibilities Of Notaris On Making Authority To Sell Deed Which Contain Power Clause (Case Study Of Decision Number 016 / G / 2014 / Ptun.Semarang)

The granting of power in Indonesian positive law is set forth in Book III Chapter XVI starting from Article 1792 to 1819 of the Civil Code. Giving power to sell is one form of power of attorney that is often found in the community. Article 1813 of the Civil Code on the expiry of the power of attorney may be disregarded, and this is what the power-granting institution is called the Absolute Power. The Absolute Authority is stipulated in the Instruction of the Minister of Home Affairs number 14 year 1982 concerning the prohibition of the use of absolute power clause in the deed of sale and the deed of sale and purchase binding. The legal method used was the normative juridical method, with the specification of descriptive analysis. The data analysis used was qualitative analysis. Based on the results of research and discussion, it can be concluded that the legal protection for the authorizer in the production of the power of sale deed may be granted if the power of sale deed is made in an authentic deed—it is the perfect evidence. Article 1800 to 1806 of the Civil Code that governs the duty of the assignee is a form of legal protection granted by law to the authorizer. The verification and judgment process by the judge to decide the case number 016/G/2014/PTUN.Smg was done equally between the plaintiff and the defendant and given the same right to prove, and the judge in accordance with the principle of the State Administrative Judge is active, of irrelevant evidence, no longer considered, but constituted a unity in the decision of this dispute.Keywords: Power of Attorney; Power of Sale; Absolute

French foreign fighters: The engagement of administrative and criminal justice in France

AbstractSince 2012, it is estimated that 2,000 French nationals have joined jihadist armed groups listed by the UN as terrorist organizations in Syria and in Iraq. Consequently, a new prosecution policy has been introduced in France. To date, more than 200 persons have been prosecuted and 1,600 persons have been placed under criminal investigation. In parallel, after the 13 November 2015 terror attacks in Paris, a State of emergency was declared. Persisting for two years, it introduced derogative administrative measures that slowly transgressed into regular criminal law. Consequently, French administrative and criminal courts, with ordinary judges and professional routines, find themselves involved in matters related to armed conflicts – a completely new phenomenon for them. What role has been performed by French criminal and administrative judges in the global fight against terrorism?This article takes a close look at France's fight against terrorism and the engagement of its domestic legal system in the context of foreign fighters and suspects of terrorism. It outlines the radicalization processes of French administrative and criminal law along with their hybridization and complementarity. While the armed conflict in Syria and Iraq and the complex geopolitical context are clearly present in French courtrooms, international humanitarian law and international criminal law frameworks are almost entirely absent. At the same time, by granting a growing power to the administration, the repressive and pre-emptive approaches introduced within criminal and administrative law transform liberal conceptions of law and justice.

The New World of Agency Adjudication

In 1946, the Administrative Procedure Act (APA) set forth the criteria for “formal” adjudication, requiring an administrative law judge to make the initial determination and the agency head to have the final word. That is the lost world. Today, the vast majority of agency adjudications Congress has created are not paradigmatic “formal” adjudications as set forth in the APA. It turns out that there is great diversity in the procedures by which federal agencies adjudicate. This new world involves a variety of less-independent administrative judges, hearing officers, and other agency personnel adjudicating disputes. But, like in the lost world, the agency head retains final decision-making authority. In 2011, Congress created yet another novel agency tribunal — the Patent Trial and Appeal Board (PTAB) — to adjudicate patent validity disputes between private parties. Questions abound concerning the PTAB’s proper place in the modern administrative state, as its features depart from the textbook accounts of APA-governed “formal” adjudication. Many of these questions are working their way through the Federal Circuit and to the Supreme Court. Indeed, the Supreme Court recently held in Oil States Energy Services that PTAB adjudication does not unconstitutionally strip parties of their property rights in issued patents—while expressly leaving open many questions concerning the limits of administrative adjudication. This Article situates PTAB adjudication within administrative law’s larger landscape of agency adjudication. By surveying this new world of agency adjudication, we find that PTAB adjudication is not extraordinary. But we also identify one core feature of modern agency adjudication that is absent at the PTAB: the Director of the Patent and Trademark Office lacks final decision-making authority. To be sure, the Director has some power to influence outcomes: in the past, she has ordered rehearing of cases and stacked the board with administrative patent judges who share her substantive vision. But these second-best means of agency-head control raise problems of their own, including constitutional questions and inefficiencies in agency performance. This Article concludes by exploring alternative mechanisms that would remedy the lack of agency-head review at the PTAB.

Принцип верховенства права в системі принципів адміністративно-правового забезпечення доброчесності суддів

Принцип верховенства права в системі принципів адміністративно-правового забезпечення доброчесності суддів

Simboli religiosi e libertà religiosa. Profili costituzionali

The essay analyzes some aspects of the freedom of religion enshrined in the Italian Constitution in relation to the principle of secularism as supreme principle of the Italian Republic, according to the definition of the italian Constitutional Court; and the extension of religious symbols and, in particular, the crucifix. First of all, the essay analyzes the question of «Italian» secularism, verifying the disparities and similarities among the various declinations of this principle, reconstructing the debate in the constituent assembly and the main jurisprudential approaches of the Italian Constitutional Court in this matter. Secondly, the essay analyzes the issue of religious symbols in public spaces and, in particular, a leading case concerning the exhibition of the crucifix in the classrooms, both at the jurisprudence level (Administrative Judge, Constitutional Court, EDU Court), and at doctrinal one. The essay, then, notes the cd. Bavarian solution, adopted by the Government of the homonymous German region, in search of a reconciliation between the religious freedom of each person and the quantitative factor per single religion. There is also an excursus on the main case law of the European Court of Human Rights about secularity, religious freedom and religious symbols.