Administrative Law Scholarship Research Articles

Automated Uncertainty: A Research Agenda for Artificial Intelligence in Administrative Decisions

Administrative bodies in the European Union (EU) and its Member States increasingly rely on artificial intelligence (AI) technologies to make sense of complex scenarios. However, scholarship and practice have both shown that the adoption of AI in the public sector is accompanied by various risks, such as algorithmic discrimination or lack of oversight over decision-making. This article proposes that analyses of administrative decision-making in the age of AI must account for automated uncertainty, that is, for the uncertainty stemming from using AI in the public sector. Automated uncertainty is closely connected to the technical opacity of AI systems—but, unlike traditional forms of scientific uncertainty, it affects not only the facts but also the very decision-making structures of public administration. As a result, traditional remedies for uncertainty in administrative decision-making do not fully respond to the implications of AI-based automation for the procedural duties governing administrative decision-making. The article accordingly concludes with proposals of how administrative law scholarship can account for automated uncertainty and ensure that the use of AI does not erode the safeguards provided by the legal framework for administrative decision-making.

Navigating the Complexity of Administrative Actions: A Taxonomy and Legal Analysis

In recent years, public functionaries have been heavily burdened by the growth of administrative responsibilities. Due to their responsibilities, they have taken on a variety of actions that the legislature and judiciary were unable to handle. These actions are of various types, such as administrative, quasi-judicial, discretionary, and quasi-legislative, etc. Despite being under the executive branch, these actions differ usually in their scope, methodology, and usage. It is a significant challenge in administrative law to precisely differentiate between these actions, as they may sometimes overlap. Judge C.K. Thakker even pointed out that there is no precise scientific test to differentiate between them. Due to the increase in the duties of government and the pursuit of the welfare state, a strict separation of the basic functions of government into three classes—legislative, executive, and judicial—is not possible, and the lines between the branches have blurred. Yet, from a legal and citizenry perspective, it is imperative to understand these diverse administrative actions. For this purpose, administrative law scholars have developed a taxonomy of administrative actions to classify different types of administrative actions and to identify the legal principles that apply to each type. In spite of the difficulties in distinguishing between various administrative actions, this research paper provides a comprehensive review of the taxonomy of administrative actions that will help in understanding each type of administrative action. This understanding is crucial for the accountability and transparency of the administrative process and for its judicial review.

Brief of Amici Curiae Administrative Law Scholars in Support of Petitioner

Brief of Amici Curiae Administrative Law Scholars in Support of Petitioner

Administrative Law Scholars Amici Brief: SEC v. Coinbase, 1:23-cv-04738-KPF (SDNY, Oct. 10, 2023)

Administrative Law Scholars Amici Brief: SEC v. Coinbase, 1:23-cv-04738-KPF (SDNY, Oct. 10, 2023)

Modern Problems of Building the Russian Model of the Administrative Process: A Review of the All-Russian Scientific-Practical Conference

The review contains the abstracts of the participants of the All-Russian scientific-practical conference “Modern problems of building the Russian model of the administrative process”, held on June 4, 2021 at the Siberian Law University (Omsk) and being the next stage in the development of the discussion of domestic administrative law scholars about the current model of the Russian administrative process, its concept, types,volume and structure, directions for improving the administrative procedural legislation, based on the standards of a legal state and taking into account the experience of foreign countries. Despite the difference in approaches to understanding the administrative process, the theoretical construction of its model, the conference participants expressed a common opinion about the urgent need to develop and adopt legislative acts that ensure an appropriate level of proceduralization of administrative activities and, accordingly, reliable protection of the rights and legitimate interests of citizens and organizations in the field of their relationship with the public administration.

Administrative Law Theory and Fundamentals: An Integrated Approach

New casebooks can be hard to justify. Many legal doctrines and their canonical cases are well established. But few fields are more in need of fresh thinking than administrative law. My new casebook, Administrative Law Theory and Fundamentals: An Integrated Approach, newly out with Foundation Press, seeks to provide such thinking. To my knowledge, it is the only administrative law casebook with the words “theory” and “fundamentals” in its title. And the reason might be that there is at present no coherent theory regarding the nature of administrative power. And the debates surrounding administrative power, on the part of both proponents and opponents of administrative government, have stalled. The new casebook proposes a theory of administrative power that better explains constitutional text and structure, as well as historical and modern practice, than competing accounts. It argues that there are “exclusive” powers that only Congress, the President, and the courts can respectively exercise, but also “nonexclusive” powers that can be exercised by more than one branch. This theory of “nonexclusive powers” allows students and scholars of administrative law to make more sense of—or better critiques of—administrative concepts such as delegation, quasi-powers, judicial deference, agency adjudications, the chameleon-like quality of government power, and of the separation of powers more broadly. This five-page introduction seeks to situate this theory within the existing administrative law scholarship.

When do courts step in? Air quality litigation and adjudication in Germany and India

ABSTRACT The systems of judicial review of administrative decisions differ in various countries. Even as differences are observable, each system creates certain stable expectations towards the functioning of judicial review and more generally towards the relationship amongst the three branches of government. Courts can behave outside of these stable expectations. This paper labels these situations as courts stepping in. In Germany as well as India, courts have played an active role in air quality litigation. The paper assesses whether in both cases courts stepped in and thereby highlights the importance of knowing the stable status quo for administrative comparative law scholarship.

National Security Policymaking in the Shadow of International Law

Scholars have long debated whether and how international law impacts governmental behavior, even in the absence of coercive sanction. But this literature does not sufficiently address the possible impact of international law in the area of national security policymaking. Yet, policies that the executive branch purports to adopt as a wholly discretionary matter may still be heavily influenced by international legal norms, regardless of whether or not those norms are formally recognized as legally binding. And those policies can be surprisingly resilient, even in subsequent administrations. Moreover, because they are only seen as discretionary policies, they may be more easily adopted than formal legal interpretations. For all of these reasons, the impact of international law on national security policymaking is a crucial unexplored area in the debate about the efficacy of international law. This Article describes how the norms and values embedded in international human rights law can sometimes be adopted, if not as a matter of formal law at the international level, then as a matter of official policy and practice. In addition, it surveys the advantages and disadvantages of such an approach, using two different Obama administration counterterrorism policies and Trump administration successor policies as case studies. Ultimately, I argue that the emergence and persistence of such policies is evidence of international law’s constraining impact. International law, it turns out, casts a long shadow as its paradigms get translated into policy. I also analyze the attributes of these policies, including their “legalistic” character and the consequences of creating policies of this type. This analysis suggests that importing international law paradigms into national security policymaking can be a pragmatic and effective alternative to formal international lawmaking, though it also may side-step the process of creating robust new international law rules. Therefore, it is a practice that executive branch officials from the United States and other countries, human rights organizations, and administrative, constitutional, and international law scholars should at least consider, while weighing both the pros and cons. In addition, the stickiness of such policymaking, even across administrations, illustrates the importance of institutional path dependence, the role of lawyers, the constraint of interoperability with key U.S. allies in multilateral military actions, and the way norms get embedded in government organizations.

Politicizing Regulation: Administrative Law, Technocratic Government, and Republican Political Theory

This article explores the relationship between modern populist movements in America and administrative law by analyzing how features of current administrative law contribute to populist or anti-establishment political movements. The article argues that features of administrative law, like notice and comment and “hard look” review, have been interpreted through the lens of a liberal rationalist political theory that is skeptical of democratic control of regulatory policy, and thereby excludes the general public from participation in the creation of politically salient national regulations. The commitment to this rationalist theory of government manifests itself in the politically neutral technocratic justifications that agencies employ and that the judiciary expects. The result is that administrative law is pessimistic about ordinary citizens’ ability to contribute to regulatory policy; that pessimism provides fodder for populist politics by contributing to the public’s feelings of distrust of and estrangement from the federal government. Recent administrative law scholarship has paid scant attention to administrative law’s relationship to anti-establishment political movements, even when those movements take aim at the administrative state directly. To remedy this problem, the article argues, based on republican political theory, for greater public contribution to regulatory policy as a way for citizens to regain a sense of connection to and trust in each other and their government through sustained participation in politics.

ПОНЯТТЯ МЕХАНІЗМУ АДМІНІСТРАТИВНО-ПРАВОВОЇ ОХОРОНИ СУСПІЛЬНИХ ІНТЕРЕСІВ... У ДІЯЛЬНОСТІ ІНСТИТУЦІЙНИХ ІНВЕСТОРІВ

The article is devoted the studying of the existing approaches of administrative law scholars to the understanding of the concept of «mechanism». The purpose of the article is the formation of the author’s vision of the concept of administrative and legal protection of public interest in the activities of institutional investors. The author emphasizes the multifaceted nature of the concept of «mechanism» in legal science, pointing out that it is most often found in scientific works in the following phrases: «mechanism of legal regulation», «mechanism of rights protection», «mechanism of ensuring rights», «mechanism of health protection», «law-making mechanism», «management mechanism». The author considered the concept of the mechanism of administrative and legal protection of the public interest in the activities of institutional investors from the standpoint of praxeology, noting that the protection mechanism allows assessing the effectiveness or ineffectiveness of the entire public governance system. The mechanism of public governance for the purpose of protecting public interests in the activities of institutional investors is considered as part of the entire mechanism of public governance of the activities of institutional investors, which is used to eliminate contradictions (potential or real) between various subjects of the public governance system in order to ensure the protection of public values. As a result, the author offers his definitions of the mechanism of public governance of the activities of institutional investors for the purpose of protecting the public interest of the element of the system of public governance of the activities of institutional investors, which characterizes its effectiveness and consists of a complex of forms and methods, with the help of which governance influence is ensured on all participants of the public governance system with the aim of eliminating contradictions between their interests (potential or real) to ensure the implementation and observance of the interests (values) of society.

Institutional Change and the Continuity of Law

This essay will be part of a forthcoming special issue of the Connecticut Law Review dedicated to the work of my UConn colleague Richard Kay. This contribution offers reflections on Rick’s theoretical and historical scholarship on processes of institutional (and, by extension, constitutional) change. Despite the intense focus on law in this work, Rick's approach suggests a surprising ambivalence about law’s role in these processes. Part I of this essay discusses this ambivalence in relation to Rick's 2014 legal-historical monograph, The Glorious Revolution and the Continuity of Law. Rick’s analysis draws theoretical inspiration primarily (though hardly exclusively) from Anglo-American tradition, based particularly on the work of H.L.A. Hart. I argue that Rick’s Hartian approach ultimately depends on a somewhat strained distinction between law and non-law in processes of change that does not map well onto the historical record that Rick otherwise cogently analyzes. Thus, as a supplement to his Hartian framework, Rick introduces the distinction between the “axiological” underpinnings of a revolution (be they social, political, or cultural) and its “legal” manifestation, i.e., the replacement of old rule of recognition with a new one. In doing so, Rick’s analysis begins to point us toward more complex dynamics in processes of change that I would argue are more robustly captured by alternative framework, one drawn from a more French tradition. I am referring to the institutional theory of Maurice Hauriou, who was among the greatest administrative law scholars of the late-nineteenth and early-twentieth centuries. Hauriou's theory emphasized how law is in fact intimately bound up with processes of institutional foundation and change rather than being external to them. Part II of this essay explores how Hauriou’s approach could reinforce Rick’s work in this area, using the example of Rick’s seminal 2011 article, Constituent Authority, to demonstrate the potential connections. The key point of contact between Rick's position and that of Hauriou, I argue, is a shared rejection of a position, ultimately championed by Carl Schmitt, which viewed law primarily as a question of existential power (or, as Hauriou put it, as an attack that has succeeded). Part III of this essay then returns to Rick’s analysis of the Glorious Revolution, arguing that the effort of its protagonists to retain the language of law and to operate within its forms was a key factor in differentiating their ultimately successful and durable process of revolutionary change from other historical examples that proved more fragile. This, I would suggest, is a vindication of Hauriou’s central insight about the crucial role of law in allowing such change to achieve legitimacy and durable institutionalization over time.

The Science of Administrative Change

Donald Trump repeatedly vowed to reduce regulation during the 2016 presidential campaign. Indeed, one of his key advisors promised to deconstruct the administrative state. Since taking office, President Trump has attempted to make good on his promises, spurring federal agencies to brush aside countless regulations that previous administrations had promulgated based on scientific, technological, or economic evidence. Those efforts, which have been dubbed a war on science, implicate a long-contested question in administrative law: to what extent should a change in presidential administrations excuse agencies from an obligation to justify changes in policy with expert, reasoned analysis of relevant data? Perhaps surprisingly, the Trump administration's efforts align with views that have dominated administrative law scholarship in recent decades. By the time Trump took office, many leading administrative law scholars had already championed enhanced presidential control over agency decisions, dismissed expert analysis as an anachronistic relic of the New Deal, and suggested that the considered judgments of previous administrations should be amenable to quick and easy change. This article takes a contrary view and asserts a renewed role for expert, reasoned analysis in the face of politically motivated administrative change. Unlike earlier work, this article identifies change as a fundamental and essential aspect of much expert decision-making, and it explains that regulatory statutes often call for an exercise of expert judgment capable of incorporating frequently changing bodies of scientific, technological, or economic knowledge. This positive procedural account of agency decision-making shows that the reasoned analysis contributed by agency expertise is far from superfluous, but contributes legitimacy and transparency to administrative government. By identifying the value of expertise within the context of politically directed policy changes, this article addresses an under-theorized aspect of judicial review of agency decisions and reinforces the need for agencies to support changes in policy with reasoned, expert analysis.

In Defense of Breakups: Administering a 'Radical' Remedy

Calls for breaking up monopolies — especially Amazon, Facebook, and Google — have largely focused on proving that past acquisitions of companies like Whole Foods, Instagram, and YouTube were anti-competitive. But scholars have paid insufficient attention to another major obstacle that also explains why the government in recent decades has not broken up a single large company. After establishing that an anti-competitive merger or other act has occurred, there is great skepticism of breakups as a remedy. Judges, scholars, and regulators see a breakup as extreme, frequently comparing the remedy to trying to “unscramble eggs.” They doubt the government’s competence in executing such a difficult task, pointing to decision-making flaws dating back to the breakups of Standard Oil in 1911 and AT&T in 1984. Even many scholars calling for more vigorous antitrust enforcement recommend alternative remedies. This Article asserts that the pervasive hesitancy about administering breakups renders antitrust impotent in the face of monopolies — too often a statutory right without a remedy. More importantly, the Article challenges the perception of breakups as unadministrable. The intellectual foundations for the anti-breakup stance are weak, relying on outdated, anecdotal evidence. Moreover, antitrust needs a methodological shift toward paying greater attention to the breakup insights yielded by other disciplines. In particular, business scholars have studied how the world’s leading companies regularly break themselves up voluntarily. Additionally, administrative law scholarship has observed a broader evolution toward collaborative regulation that shows how the much-maligned historical approaches to antitrust remedies could be greatly improved by relying more on the business sector in designing and implementing breakups. In other words, insights from outside of antitrust address many critiques of breakups and show how that remedy is far from radical and messy. Antitrust observers should thus abandon the worldview that compares breaking up prior companies to unscrambling eggs. Or at a minimum they should recognize that scrambled eggs, once cooked, are regularly divided into smaller portions. A greater willingness to do the same to monopolies in the post-merger context and beyond would bring regulators more in line with the business sector, which sees divestitures as a routine part of effective governance.

The Chinese Tradition of Administrative Law

For most of the time during the last two millennia, China was a dynastic empire ruled by an emperor with the assistance of a highly developed mandarinate of imperial organs. “Administrative law” in the modern sense of a set of legal norms enacted by the legislature or developed by the judiciary that simultaneously empower and constrain state organs and officials for the purpose of protecting the rights and liberties of subjects or citizens did not exist in traditional China. But there did exist for more than two millenniums elaborate and sophisticated rules regulating the powers and functions of each component of the highly complex and extensive machinery of imperial organs and officials, and prescribing in detail the duties of officials as well as the multiple and complicated monitoring, supervisory and disciplinary mechanisms applicable to the exercise of powers and performance of duties by officials in different state organs. By the late 19th century, Qing China’s increasing subordination to Western imperialism and semi-colonialism convinced significant numbers of Chinese political and scholarly elite that there was a desperate need for China to “save” and strengthen itself by pursuing modernization. In the legal and political domains, this generally meant extensive borrowing or transplant of Western political and legal institutions. After China's defeat by Japan in the Sino-Japanese War of 1894–1895, Japan’s experience of successful modernisation was widely admired by Chinese intellectuals, and the Japanese model was perceived as one that China should imitate in its self-strengthening efforts. This essay will therefore begin with the introduction and reception of Japanese administrative law in China in the late Qing Dynasty. It will then survey the study of comparative law and the influence of foreign law on the development of Chinese administrative law in the Republic of China era (1911–1949) and after the establishment of the People's Republic of China (1949-). Major developments in Chinese administrative law in both the Republican era and the Communist era will also be briefly outlined as the context of administrative law scholarship. It will be seen that the story of the study of comparative and foreign administrative law in modern China is very closely intertwined with the story of the development of Chinese administrative law itself.

Judicial review of regulatory decisions: Decoding the contents of appeals against agencies in Spain and the United Kingdom

AbstractDespite the important role that courts play to supervise the legality of regulatory agencies' actions, only few comparative studies analyze the contents of judicial appeals against regulatory decisions within European countries. This paper builds on the comparative administrative law scholarship and administrative capacities literature to analyze the content of 2,040 rulings against decisions issued by competition and telecommunications regulators in Spain and the United Kingdom. To understand the substance of the appeals, the study classifies cases according to the alleged administrative principles under breach and the regulatory capacities under challenge. Findings show a clear country‐sector variation regarding the information contained in judicial disputes for both dimensions of analysis, which can be explained as a result of existing differences between the institutional settings of courts. These results offer a more in depth understanding of the political role of judicial oversight over regulatory agencies embedded in different institutional arrangements and policy sectors.

Do we need a theory of legitimate expectations?

AbstractIn recent years, it has become common to see claims that the doctrine of legitimate expectations has no sufficiently defined purpose, and that administrative law scholars should do more theoretical work to bring coherence to this area of law. In this paper, I suggest this ‘conceptual critique’ of legitimate expectations is misplaced and that, instead, it reveals a much wider failing of contemporary administrative law scholarship. First, I show how there has not yet been, and is unlikely to be, a satisfactory answer to the conceptual critique. Following on from this premise, I suggest that the assumptions underlying the conceptual critique are faulty and, administrative lawyers need to fundamentally alter and expand how they study legitimate expectations. The aim now, I argue, must be to move towards providing an account of the practice of legitimate expectations in the wider context of public administration. My specific argument in this paper is thus a case for a significant reorientation and an expansion of the study of how law protects legitimate expectations, but the wider suggestion is that the same shift is required in administrative law scholarship generally.

The Iceberg of Australian Administrative Law: Justice Before and Beyond Judicial Review

The majority of administrative law scholarship is devoted to judicial review. This is understandable in as much as administrative law case law is devoted to judicial review matters to an extent that exaggerates their prevalence. Professors Creyke and McMillan have however long understood – and have striven to make others understand – that this most visible aspect of administrative law cannot be used as an excuse for ignoring the much greater mass of administrative law redress that exists out of sight. This final chapter will draw together the threads of the previous chapters and will analyse the impact of the honourees’ scholarship over the course of four decades.

Nuclear Power Plants and Terror Attacks in Japan

The operation of several Japanese nuclear power plants has been halted because the Nuclear Regulatory Committee (NRC) reported that these nuclear power plants are not sufficiently prepared for potential terror attacks. It is unclear how the Japanese judiciary exercises judicial review for this NRC decision regarding terror attack protection measures. Japanese courts previously avoided the constitutionality of defense and peace statutes by using political questions. The attitude of the Japanese judiciary toward national defense is symbolic in several cases for Article 9, the pacifism provision of the Japanese constitution. Japanese administrative agencies are authorized to exercise discretion in the scope of power that is vested in them by the statutes passed in the parliament, or Diet. Under the Administrative Case Litigation Act (ACLA), which was revised in 2004, Japanese courts can review administrative discretion according to several principles such as fact-finding, purpose, timing, equal principles, constitutional rights infringement, and unconstitutional motives. The Judiciary has reviewed administrative agencies’ decision under under ACLA. Under ACLA, Japanese courts maintain arbitrary and capricious administrative discretion but not the political validity and policy judgement capability of administrative agencies. Judiciary defers to administrative agency decisions for its expertise. Citizens may take action toward administrative agencies regarding its validity by the Administrative Appeal Act (AAA). The AAA provides an avenue that is simpler than ACLA and yields a more rapid response, but it is not as fair as the ACLA because agencies themselves conduct an internal review on the validity of its decisions. In the famous Ikata nuclear power plant case of 1992, the Japanese Supreme Court deferred to the administrative agency decision for its expertise but did not use the term “discretion.” This may have been because nuclear power plants are related to Japanese energy policy, thus affecting Japan as a whole. This paper argues that in general, the judiciary does not thoroughly review public records and the reasoning behind administrative decisions but may identify unconstitutional motives. The Japanese court has not yet reviewed the NRC decision of halting nuclear power plant operation due to possible terror attacks. The statute for terror attacks was passed soon after the Great East Japan Earthquake in 2011. Terror attacks may provide an avenue for the Japanese judiciary to avoid conducting a judicial review of the administrative agency’s decision. It is unclear whether the Japanese judiciary will carefully examine this issue or defer to the NRC as terrorist protection overlaps with the field of national defense, which is stipulated in Article 9. This paper argues that national defense and nuclear power plant safety in the event of natural disasters both differ and overlap. Japanese administrative law scholars must analyze the expertise of the administrative agency in giving deference to the Japanese judiciary.

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.

The Structural and Administrative Demands of Unwritten Constitutional Principles

This article challenges the traditional view in administrative law scholarship that the mandate and design of administrative decision-makers are principally products of executive policy choice and legislative delegation. Drawing on public law theories of structural interpretation and positioned within the growing field of administrative constitutionalism, this article argues that unwritten features of the Constitution can make concrete demands on institutional structure and tribunal design such that certain functions and features of the administrative state are constitutionally required. The argument emerges from a careful analysis of a single case study, that of the discipline, and in particular the removal, of superior court judges in Canada. The analysis reveals that section 99(1) of the Constitution Act, 1867 provides an incomplete account of the procedures that must be followed in order to remove a federally appointed judge from the bench. More specifically, the case study establishes that the principle of judicial independence requires that judges be eligible for removal under section 99(1) only after an administrative process is held, one that investigates the alleged misconduct and assesses the facts against the constitutional standard of good judicial behaviour. Judicial independence further demands that this process embody certain essential features—features that are familiar to administrative law: the inquiry must be carried out by a body that is independent from the political branches of government; the body must conduct itself in accordance with a commitment to the independence of the judiciary; the inquiry must be carried out in accordance with the duty of fairness; and both the process and substantive determinations of the inquiry process must be subject to review by the courts. While current theories of administrative constitutionalism have often been focused on the role of administrative decision-makers in interpreting and implementing constitutional rights, this article builds on the work of Mashaw, Lee, Bremer, and Metzger and Stack to open and contribute to important structural conversations in the field.