Rules Of Administrative Law Research Articles

Conflicts and strategies in administrative law

Administrative law solves conflicts; but, at the same time, it is a battlefield. Principles and values do exist, and judicial review plays an important role in crafting and enforcing them. Nonetheless, a significant part of administrative law is in the hands of multiple political, institutional, and economic actors, who struggle, interact, and bargain. Each of them acts as a rational agent, trying to maximize its welfare through the manipulation of administrative law. Outcomes of this multipolar struggle and, subsequently, rules of administrative law differ from one legal order to another. But the logics are common to different administrative law systems around the world. And some preliminary hypothesis about most successful strategies—like the power to rule, coalition capacity, costs allocation—can be generalized or tested in different contexts. Conflicts in administrative law, of course, are not a single-battle war. Every move of one actor responds to the moves of others. This is why administrative law is a repeated interactions game. Each move is incremental and path-dependent. Legal devices and mechanisms set up in the previous round cannot be easily and fully dismantled. As a consequence, understanding administrative law in complex legal orders and societies requires a microanalysis approach: “Devil is in the details.”

Organizational and legal mechanism of the environmental protection

Organizational and legal mechanisms of environmental protection are defined by the author of the article as a mechanism of organization and system of activities of state executive power bodies and local self-government bodies in the field of environmental public relations arising in connection with environmental protection and environmental safety provision. The rules of administrative law are its legal basis, alongside with the norms of environmental law. The former designed to reflect the specifics of the subject, objects, subjects and principles of legal regulation of social relations in this area. The latter define common goals, objectives and functions of state public relations management nature.

The Death of Tax Court Exceptionalism

Tax exceptionalism — the view that tax law does not have to play by the administrative law rules that govern the rest of the regulatory state — has come under attack in recent years. In 2011, the Supreme Court rejected such exceptionalism by holding that judicial review of the Treasury Department’s interpretations of the tax code is subject to the same Chevron deference regime that applies throughout the administrative state. The D.C. Circuit followed suit by rejecting the IRS’s position that its notices are not subject to judicial review under the Administrative Procedure Act (APA). This Article calls for the demise of another instance of tax exceptionalism: the United States Tax Court’s longstanding view that it is not governed by the APA.In addition to presenting the legal case against Tax Court exceptionalism, the Article explores administrative law and tax policy considerations that favor the Tax Court following traditional administrative law, including consistent application of the law, efficient allocation of resources, horizontal and vertical equity, comparative agency expertise, and a proper separation of powers. Moreover, by following administrative law principles that may be more deferential to the IRS in a particular case, the Tax Court can establish a richer dialogue with the IRS to improve agency procedures and decision-making — thus advancing tax policy’s interest in protecting less sophisticated taxpayers while increasing economic efficiency. With a growing circuit conflict as to whether the Tax Court is bound by the APA, the Tax Court should reverse course now before the Supreme Court intervenes to declare the death of tax exceptionalism in yet another area of tax law.

The constitution of China: a contextual analysis

1 A Century of Turmoil: An Overview of China's Constitutional Reform and Revolutions I. Introduction: The Dawn of a Constitutional Moment II. Constitutional Elements in the Ancient Regime and Their Limitations III. The First Republic: The Nationalist Revolution of 1911 IV. Why Revolutions Fail to Bring about Constitutionalism Further Reading 2 The New Constitutional Order of the People's Republic I. The Second Republic: The Communist Revolution of 1949 II. The 1982 Constitution III. Constitutional Amendments IV. Constitutional Transformations Further Reading 3 Governing the Goliath: China's Central and Local Relations I. Introduction: The Sun Zhigang Tragedy II. The Constitutional Landscape III. Keeping Laws in Order IV. Bottom-Up or Top-Down? Rule of the Party Reinforced V. Pluralism within a Unitary System Further Reading 4 Democracy with Chinese Characteristics? The Role of the People's Congresses I. Introduction: Supremacy by Rubber Stamp? II. The National People's Congress (NPC) III. The NPC Standing Committee (NPCSC) IV. Local People's Congresses (LPCs) V. How to Make Democracy Work Further Reading 5 Administration of the State According to Law I. The Central Government II. Local Government III. Toward Administrative Rule of Law? Further Reading 6 De-politicising the Judiciary I. Introduction: Establishing Judicial Review? II. Judicial Structure and Functions III. Judicial Reform: Necessities, Possibilities, Limits Further Reading 7 The Contemporary Rights Revolution: Life, Liberty, Property and Equality I. Introduction: Back to the Sun Zhigang Model II. Equality III Liberty IV. Property Further Reading 8 Still Dormant: Political and Religious Rights I. Introduction: What the Sun Zhigang Model Cannot Do II. Freedom of Speech III. Freedom of Religion IV The Right to Election Further Reading 9 Conclusion: The Future of China's Constitutionalism I. Back to 1911? The On-going Saga of China's Constitutional Journey II. Toward the Third Republic? The Future of China's Constitutionalism Further Reading

Conflicts in Administrative Law: Struggles, Games and Negotiations Between Political, Institutional and Economic Actors

Administrative law solves conflicts. But, at the same time, it’s a battlefield. Principles and values do exist. And judicial review plays an important role in crafting and enforcing them. Nonetheless, a significant part of administrative law is in the hands of multiple political, institutional and economic actors, who struggle, interact and bargain. Each of them acts as a rational agent, trying to maximize its welfare through the manipulation of administrative law. Outcomes of this multipolar struggle and, subsequently, rules of administrative law differ from one legal order to another. But logics are common to different administrative law systems around the world. And some preliminary hypothesis about most successful strategies - like power to rule, coalition capacity, costs allocation - can be generalized or tested in different contexts. Conflicts in administrative law, of course, are not a single battle war. Each move of one actor follows the moves of the others. This is why administrative law is a repeated interactions game. Each move is incremental and path-dependent. Legal devices and mechanisms set up in the previous round cannot be easily and fully dismantled. As a consequence, understanding administrative law in complex legal orders and societies requires a microanalysis approach: “Devil is in the details”.

The Unwritten Constitution of the Fourth Branch

It is widely accepted that the powers of the federal government flow from the U.S. Constitution. Yet in practice, most federal power is exercised through administrative agencies, institutions not mentioned in the Constitution. Since the New Deal era, administrative law - the seemingly disparate set of rules governing agency action that are found in statutes, judicial decisions, and executive directives - has accommodated the emergence of this fourth branch of government not contemplated by the framers. Familiar principles, including the separation of powers, the rule of law, and individual liberties, permeate administrative law. But these principles cannot expressly be located in the U.S. Constitution. So what is their legal and theoretical foundation? And how are they found in administrative law?This Article argues that administrative law provides an unwritten constitution governing federal administrative agencies. American administrative law is illuminated law through the lens of constitutional theory, and particularly principles of British constitutionalism. This Article shows that administrative law rules, though not formally entrenched, perform essential constitutional functions where the written Constitution has little or no application. These functions include constituting government agencies, determining institutional boundaries, establishing the government-citizen relationship, and protecting fundamental values.The unwritten constitution theory provides a legal and theoretical foundation for ensuring that the administrative state operates consistently with constitutional principles. It also legitimates administrative common law and illuminates political obligations to respect constitutional principles in administrative law development and reform.

EU Law and Access to Court: The Experience of Austria in the Telecommunications Sector

This article explores how Austrian administrative law rules on standing have been influenced by European Union law. Firstly, the EU law requirements concerning the right to have access to a court will be briefly explained. Secondly, the Austrian administrative procedural rules on standing will be presented. Finally, the case law of the Verwaltungsgerichtshof in the telecommunications sector will be analysed as to whether it complies with the EU law requirements.

Public participation and administrative rule of law

The public participation and the system of the People’s Congress constitute a basic mode of China’s modern democracy. This article first analyzes the lessons from the development of public participatory democracy since the founding of People’s Republic of China, especially those related to the promotion of public participation and the establishment of rule of law in administration and constitutionalism, then, and study the strategic value and potential risks of public participation to the development of human society, the necessity and channels of law protection on public participation. At last, it discusses the trend of public participatory democracy in the environment of globalization and informationization, and its impact on the reconstruction in respect of administrative rule of law and constitutionalism.

Ethics Review for Sale? Conflict of Interest and Commercial Research Review Boards

Research review boards, established to protect the rights and welfare of human research subjects, have to ensure that conflicts of interest do not interfere with the ethical conduct of medical research. Private, commercial review boards, which increasingly review research protocols, are themselves affected by a structural conflict of interest. Within the regulatory setting, procedural conflict-of-interest rules are essential because of the absence of clear substantive rules in research review and the reliance on the fairness and good judgment of institutional review board members. Current guidelines and regulations lack adequate conflict-of-interest rules and provide insufficient details on the substantive rules. Because commercial review boards are similar to administrative courts and tribunals, rules of administrative law on bias are applied to determine when a conflict of interest jeopardizes the purposes of research review; administrative law has always judged financial conflicts of interest severely. The structure of private review tends to breach a core principle of administrative law and procedural justice. Reform of the research review system will reinforce public trust in the process.

The influence of Globalization on National Administrative Law: International Legal discourse

The present article provides the analyses of the influence of globalization on national administrative law. It is noted that the modern era of civilizational development is an era of globalization, encompassing the dynamic development of international integration processes in all directions of human life, particular, in the public sphere, which is regulated by the rules of administrative law through the prism of the values of the rule of law. In order to resolve the issues of realization and protection of human rights in the public sphere (in the global dimension) the concept of Global Administrative Law emerged. This concept encompasses the combination of legal rules, principles and institutional rules applicable to the process of public administration, which is carried out in ways that apply not only to domestic law but also to the structure of political power; administration takes place within the global administrative space, causing a blurring of national and international, public and private dimensions. The author has emphasized that globalization place new demands on the system of functioning of national public administration systems, which should become an effective tool in solving complex intercultural contradictions, especially those arising in the process of harmonization of the mechanisms of joint functioning of national states in the world, and therefore harmonization of relations between the states and establishment of effective forms of cooperation, which to a certain extent can contribute to ensuring openness and transparency of the sphere of international relations. This process not only contributes to the emergence of global administrative law, but also creates a broad, universal recognition of the principles and concepts that global administrative law requires. It is concluded that the implementation of international norms, standards, procedures that operate on a global scale will help Ukraine to gradually build a European, sovereign, independent, democratic, social, legal state, whose main responsibility is to promote and protect human rights and freedoms, where a individual, his or her life and health, honor and dignity, integrity and security will be recognized as the highest social value as an effective mechanism of human-centered concept.