Area Of Administrative Law Research Articles

Die behördliche Aussetzung von Verwaltungsakten bei veränderter Sachlage. Rechtsnatur und Zulässigkeit am Beispiel der Ausfuhrgenehmigung

During the international political and military crisis in Ukraine in 2014, a German armaments manufacturer intended to export a training camp for field exercise to the Russian Ministry of Defence. Exports of weapons and military engineering require permission (Ausfuhrgenehmigung) from the Bundesamt fur Wirtschaft und Ausfuhrkontrolle, a government agency under the control of the Federal Ministry for Economic Affairs and Energy. As this permission had been granted before Russia’s military intervention in Ukraine, the considerable change of circumstances led to a re-assessment of the security situation and raised the question of how to deal with the permission. Section 49(2) of the Federal Administrative Procedures Act allows for a cancellation (Widerruf) of an administrative act (Verwaltungsakt) due to a change of circumstances, such as where the permission would have been denied had the circumstances changed before the permission was granted. However, such a cancellation irrevocably voids the administrative act. In some cases, it may be more appropriate to only suspend the permission in order to monitor the situation before making a final decision. In the case at hand, the Bundesamt therefore ordered the temporary suspension (Aussetzung) of the permission arguing that section 49(2) of the Administrative Procedures Act allowed not only for a cancellation but, a maiore ad minus, also for a suspension of administrative acts. This assumption raises two questions: First, what is the distinct legal character of a suspension of an administrative act compared to its ultimate cancellation? Second, what are the specific legal requirements for such a suspension? With regard to the first question, the article concludes that the suspension relates to the enforceability (Vollziehbarkeit) of administrative acts, and that only validity (Wirksamkeit) and enforceability should be used to categorize the legal effects of administrative acts; other current differentiations such as interior and exterior validity or validity and legal existence are dismissed. Concerning the second question, the article analyses several legal provisions in different areas of administrative law, which allow for the suspension of administrative acts but shows that no such explicit legal basis exists in the field of foreign trade. This calls for an in-depth analysis of whether a suspension order can be based on a legal provision authorizing the cancellation of an administrative act. The article concludes that less intrusive measures (Minusmasnahmen) can replace measures provided for in a legal provision only under specific circumstances. It is argued that the requisite conditions are in principle fulfilled when a short-term suspension order referring to the temporary character of a change of circumstances is based on section 49(2) of the Administrative Procedures Act. Read More: https://ejournals.duncker-humblot.de/doi/abs/10.3790/verw.50.4.463

EUROPOS TARYBOS KURIAMA PRIDĖTINĖ VERTĖ ADMINISTRACINEI TEISEI: BENDRŲ EUROPINIŲ GERO ADMINISTRAVIMO NUOSTATŲ VYSTYMAS IR JŲ REIKŠMĖ EUROPOS TARYBOS VALSTYBIŲ NARIŲ NACIONALINEI TEISEI

Nepaisant to, kad Europos Taryba administracinės teisės plotmėje veikia ne vieną dešimtmetį, šios organizacijos išplėtotos bendros europinės gero administravimo nuostatos tebėra nepakankamai ištirtos. Šiuo straipsniu siekiama iš dalies užpildyti šią akademinę spragą bei įvertinti Europos Tarybos plėtojamų bendrų europinių administracinės teisės principų apimtį ir turinį, ypatingą dėmesį skiriant organizacijos skleidžiamam gero administravimo imperatyvui. Siekiant šio tikslo, straipsnyje apžvelgiami iš Europos Tarybos kylančios administracinės teisės šaltiniai ir būdai, leidžiantys šiai teisei prasiskverbti į organizacijos valstybių narių nacionalines teisės sistemas. Straipsnis baigiamas išvada, kad Europos Tarybos veikla administracinės teisės plotmėje prisideda prie jos valstybių narių nacionalinių teisinių sistemų glaudėjimo, tačiau tikslus šios organizacijos daromas poveikis turi būti įvertintas nuodugnesnių tyrimų.

Royal Treatment: The Crown’s Special Status in Administrative Law

My focus in this paper is on the treatment of the Crown by the courts, especially Canadian courts, in judicial review of administrative action. In three areas of administrative law, the Crown has been accorded a special status, distinct from that of statutory bodies: administrative powers, justiciability, and remedies. In respect of administrative powers, the Crown qua Crown has inherent capacities that are not available to statutory bodies. In respect of prerogative powers, the grounds of judicial review are restricted. In respect of the remedies that courts may grant, these may be more limited when exercises of the prerogative are involved. In the cases, the special status of the Crown is asserted rather than justifi ed: it is a legal fact in search of a normative justifi cation. The absence of a convincing normative justification for the special status of the Crown in judicial review of administrative action is significant, because the outcome of a case could well turn on whether the power deployed to eff ect a change in an individual’s legal position was exercised by the Crown or by a statutory decision-maker. My discussion of the three areas leads me to suggest that it should be possible to bring the treatment of the Crown into line with that of other administrative decision-makers without creating serious jurisprudential diffi culties.

Rol e importancia de las leyes de bases en el Derecho Administrativo chileno

This article aims to analyze the role they play in the administrative law framework laws, determine whether there is indeed a priority of these on special laws and establish their possible similarity with existing codes. Also, its importance will be discussed and how they have influenced the respective microsystem, unifying and filling gaps that may exist on the special laws, with special mention to the incorporation of principles as set out prescriptive inform their legal interpretation and, where appropriate, the judicial application of particular provisions. Under such a predicament the need for enactment of these will be discussed and then indicate whether its existence is required in other areas of administrative law, as it would be in the penalty area.

Administrative Sanctions: Between Efficiency and Procedural Fairness

The article aims at presenting - from Poland’s perspective - the challenges in building an adequate system of administrative sanctions. It is claimed that the efficiency of the functioning of this system should be balanced with the appropriate level of observance of procedural fairness as well as with appropriate rules governing the attribution of administrative liability. This article analyzes three areas where a balanced approach is needed: the first concerns the bases for administrative liability, the second the scope of procedural rights, and the third the institutional arrangement of the system. This article names two factors that should be taken into consideration when deciding how to reconcile efficiency with procedural fairness. Taken into account should be, first, the complexity of the given area of administrative law and, second, the severity of the sanctions.

Tailor-Made Rules Needed: A Balanced Approach to Imposition of Administrative Sanctions in Poland

The paper analyzes the Polish legal system under which administrative sanctions are imposed. It is claimed that the efficiency of the functioning of this system should be balanced with the appropriate level of observance of procedural fairness as well as with appropriate rules governing the imputation of administrative liability. The paper analyzes three areas where a balanced approach is needed. The first concerns the premises of administrative liability, the second the scope of procedural rights, and the third the institutional arrangement of the system. The paper names wo factors that should be taken into consideration by the Polish legislator and the Polish Constitutional Court when deciding how to reconcile efficiency with procedural fairness and with an adequate construction of the premises of administrative liability. Taken into account should be, first, the complexity of the given area of administrative law and, second, the severity of the sanctions.

Administrative Law: A Values-Based Approach

I focus in this essay on judicial review of administrative action, looking at the subject “from the inside, trying to make sense of lawyers’ reasons and arguments as they are actually presented and defended”. Rather than starting from the constitutional basis of judicial review and working backwards to practice, I start by identifying the core values revealed by the practice of administrative law and then work forwards to analyze how they influence the shape and trajectory of the law.My focus is on administrative law doctrine. I contend that administrative law in this sense is best understood by reference to several core values: the rule of law, good administration, democracy and separation of powers. I trace the contours of these values in Part II. These values inform doctrinal choices that courts make in the areas of process, substance and remedial discretion, a body of law considered in Part III. Occasionally they must be complemented by institutional considerations, discussed in Part IV, centering on the need to conserve scarce judicial resources but taking account also of the role of judges in the common law tradition. I take the time in this paper to discuss important areas of administrative-law doctrine and determine whether judicial decisions are influenced by a set of values. Identifying these values is a useful task. Explaining doctrinal rules and outcomes in particular cases is valuable, all the more so if common themes can be traced across very different areas of administrative law. A values-based framework is capable of accommodating the development of doctrine over time, an urgent matter given the rapid growth of the administrative state and legal constraints on it in recent decades. It may also help to account for convergence and divergence across the common-law world: Commonwealth countries have (largely) a common heritage, one which they treat in different ways, but (generally) in a fashion that is comprehensible to all common lawyers, not just the natives of a particular jurisdiction.

THE COHERENCE OF THE DOCTRINE OF LEGITIMATE EXPECTATIONS

AbstractThe doctrine of legitimate expectations is a developing area of administrative law, and many issues remain outstanding. Promises, practices, and policies generate legitimate expectations, but what is special about them? Why do they and only they generate legitimate expectations? The lack of an obvious answer has led some commentators to claim that the doctrine is ultimately incoherent and should be disaggregated. In this paper, we challenge this claim by arguing, first, that promises, practices, and policies each comprise or make applicable a certain type of rule, and second, that having a legitimate expectation is a matter of such a rule binding a public body to act in some way. This rule-based account gives the doctrine of legitimate expectations both coherence and distinctiveness.

Social security as a promising area of administrative law

Social security as a promising area of administrative law

The Deliberation Paradox and Administrative Law

Deliberation is a linchpin of administrative decision-making, and is a key basis for judicial deference to the agency’s interpretation of law. But deliberation has a dual valence in other areas of administrative law: it triggers the right to access to agency information in public meeting laws, but bars access in public records laws. This is the first Article to identify and explain what I call the Deliberation Paradox in administrative law. This longstanding but unexplored dichotomy has roots in common law history, separation of powers, the purposes of public access statutes, and assumptions about how the government works. But the development of deference doctrines since Chevron v. NRDC sets deliberation at cross-purposes, confusing agencies about what is publicly accessible and denying the public information about vast swaths of government decision-making. This Article contends that the Deliberation Paradox should be recognized and discarded in favor of an approach that grants deference only to deliberation that is publicly disclosed, with significant implications for judicial deference to agency interpretations of law and for inter-agency collaboration.

The Influence of Administrative Law Judge and Political Appointee Decisions on Appellate Courts in National Labor Relations Board Cases

Scholars have long been simultaneously concerned with the factors that influence appellate court decision making and the level of deference that the courts allow for agencies. However, scholars have treated administrative agencies as unitary actors with a single level of decision making, but in reality agency decisions involve input from multiple actors within the agency. I argue that appellate courts rely more heavily on decisions made by actors in the bureaucracy with greater levels of expertise and who are less politically motivated as cues in their decision making. This theory is bolstered by legal precedent in the area of administrative law that suggests courts should more heavily rely on the expert judgment of administrative judges. Thus, as a result of their increased expertise, appearance of political neutrality, and institutional support, courts will be more reliant on decisions issued by administrative law judges (ALJs) than those issued by the political appointees as cues in their decision making. Using over 300 unfair labor practice decisions issued by the federal appeals courts on review of cases from the National Labor Relations Board (NLRB or Board), I develop a model of appeals court decision making in unfair labor practice cases as a function of the initial decision of the ALJ, the final order of the political appointees of the NLRB, case characteristics, the ideology of the deciding appeals court panel, Supreme Court influence, and economic factors. Though the ideology of the court plays a role in its decision making, cues from ALJ decision making and that of the Board weigh more heavily in appellate court outcomes. However, cues from ALJ decisions play the most consistent role in appellate court decision making, even in more difficult cases. This has important implications for agency strategy in courts and suggests that future research should consider the influence of lower‐level decision making over appellate court decision making in the area of administrative law.

Compendio di diritto amministrativo canonico by Jorge Miras, Javier Canosa and Eduardo Baura (review)

Reviewed by: Compendio di diritto amministrativo canonico by Jorge Miras, Javier Canosa and Eduardo Baura William L. Daniel, Judge, Vice-Chancellor Compendio di diritto amministrativo canonico, Subsidia Canonica 4, by Jorge Miras, Javier Canosa and Eduardo Baura. Rome: Editore Università della Santa Croce, 2007. Pp. 1-408. This compendium, the newest addition to an Italian series of pedagogical manuals, is a translation by Alberto Perlasca of a Spanish book published out of the faculty of canon law at the University of Navarre. While it describes itself as a translation of the first of two Spanish editions (1st ed., 2001; 2nd ed., 2005), one of the authors informed this reviewer that it can be considered a veritable third edition since it has benefitted from some corrections and has been updated with references to recently issued documentation from the Apostolic See. Consolidating and developing the work of Javier Hervada, Pedro Lombardía and Eduardo Labandeira, the authors successfully synthesize the principal achievements of administrative-canonical legislation and scientific research. They identify administrative authorities and examine the juridic acts proper to them, giving suitable attention to legal remedies against illegitimate or inopportune acts. The book is divided into ten lessons (lezioni), each dealing with a particular area of administrative law in the canonical system. The ten areas are the following: 1) the notions of the public administration and of administrative law, 2) the submission of the public administration to the principle of legality, 3) the administration's legal capacity to create norms, 4) the administration's ability to enter into agreements and to impose penalties, 5) the notion of a singular administrative act, 6) the efficacy (e.g., execution) and inefficacy (e.g., invalidity) of such an act, 7) the nature of the singular decree and the rescript, 8) the content of rescripts (i.e., favors, privileges and dispensations), 9) hierarchical recourse, and 10) contentious-administrative recourse before the Supreme Tribunal of the Apostolic Signatura. For the insight of the reader, the principles mentioned are frequently illustrated with the jurisprudence and praxis of the Roman Curia. Especially welcome are the summaries of causes adjudicated before the second section of the Apostolic Signatura. By including these elements the authors highlight the necessary complementarity between canonical doctrine and jurisprudence. Given the plenitude of references to canons and other normative sources—and despite the fact that this may depart from the manual style of [End Page 693] the book—it would have been useful for research purposes to include an index of canons cited, and we recommended this for a future edition. Still, the reader is aided by the detailed table of contents, the bibliographies, and the glossary of key terms. Since this volume is intended especially for the use of students at the licentiate level of canonical studies, it does not dwell on disputed questions in canonical doctrine, though passing reference is occasionally made to these. Students comfortable reading Italian would be rewarded were they to include this book in their personal library. It is a convenient reference tool for encapsulating basic, peacefully-accepted notions. This reviewer therefore highly recommends it to all canonists since it furnishes an extensive treatment of the general norms of canon law, especially those concerning the exercise of executive power, which constitutes much of the daily activity of ecclesiastical governance. William L. Daniel, Judge, Vice-Chancellor Diocese of Winona Winona, MN Copyright © 2012 The Catholic University of America Press

Supreme Court Holds in Mayo Foundation that Medical Residents are Not Students

ABSTRACT In Mayo Foundation v. U.S., the United States Supreme Court recently ended a dispute as to whether stipends paid to medical residents are subject to FICA. A statutory provision excludes “students” from FICA, and the question was whether medical residents could be considered students, thereby making them eligible for the exclusion. The Treasury Department amended its definition of “student,” as that term is used in the Internal Revenue Code (IRC), following adverse decisions in several circuits. What began as a case of statutory construction turned into one of administrative authority. Ultimately, the Court upheld the regulation, which categorically denies medical residents from being eligible for the student exemption. The Supreme Court's decision reaches far beyond this narrow issue, however, because the underlying analysis applies in all areas of administrative law. The Court made clear that a uniform standard of deference applies not only to the Treasury Department, but to all administrative agencies. That standard, which was announced by the Court in Chevron USA v. Natural Resources Defense Council, Inc. in 1984, states that an agency's rule or interpretation will be upheld as long as Congress was silent or ambiguous with regard to the issue at hand, and the rule or interpretation is a permissible construction of the statute.

The EU Fundamental Rights Agency within the European and international human rights architecture: The legal framework and some unsettled issues in a new field of administrative law

With the establishment of the Fundamental Rights Agency, an important development might come full circle. The European administration by the Commission and the Council in the 1970s and 1980s entailed a process of constitutionalization of the European Communities, in particular through fundamental rights protection. Now the developed constitutional law of the Union might usher a new field of administrative law if the potential of the Fundamental Rights Agency is realized. The increasing influence of specific human or fundamental rights institutions in numerous States is calling into question an understanding of fundamental rights protection that is mainly focused on judicial review. Under the approach taken here, administrative rights promotion is conceived of as a significant instrument supplementing legal protection by the courts and therefore an important field of administrative activity: European administrative law scholarship should move accordingly into this field. To contribute to this end, the relevant developments in the Union are recapitulated in order then to present the Agency’s activities and tasks as a specialized agency for the promotion of fundamental rights where numerous unsettled issues lurk, in particular in light of the UN model of specialized independent institutions promoting human rights. Thereafter, the Agency’s possible impact on the constitution of Europe is analysed, while the last part of the article recalls the main findings and discuss the prospect of human and fundamental rights promotion as a new area of administrative law.

Judicial Review of Administrative Actions and Principles

Administrative law has a tremendous social function to perform. It is the body of reasonable limitations and affirmative action parameters, which are developed, and operationalised by the legislature and the courts to maintain and sustain the rule of law. The courts, through writs of habeas corpus, mandamus, certiorari, prohibitio and quo warranto, control administrative action. The source of Administrative law is the statutes, statutory instruments, precedents and customs. The article discusses the doctrine of legitimate expectation, Public Accountability and doctrine of proportionality. The increased power of the administration judicial control has become an important area of administrative law, because courts have proved more effective and useful than the legislative or the administrative powers.

Ideology and Deference in U.S. Courts of Appeals Decision Making on Administrative Law

The aggrandizement of the administrative state in terms of its size and power has enabled the federal judiciary to enter the political arena regarding control of the bureaucracy. Some scholars have argued that the manner in which courts responded to this development of modern administration is a function of the ideological foundation of the courts relative to the politics and decisions of the agencies. Yet, the Supreme Court's seminal decision in Chevron mandates that courts must afford great deference to agency rule making, irrespective of the judges' ideology, thus providing for the possibility that this decision has acted as a jurisprudential regime by altering the manner in which subsequent administrative cases are evaluated. Which provides for greater influence on the Courts of Appeals, ideology or deference? Preliminary findings as reported herein suggest that Chevron did indeed shift decision making in the federal appeals courts and thus appears to have served as a jurisprudential regime in the area of administrative law. Notwithstanding, this increased tendency of courts to defer to agency action in the post-Chevron era coexists in tandem with the ideology of the courts, as it appears that both ideology and deference to administrative policy are critical to explaining this aspect of judicial behavior.

Politics, Ideology, and Legal System Reform in Northeast Asia

Legal systems throughout East Asia are in the midst of rapid and potentially fundamental change, across a range of legal fields. This paper, prepared for a conference on the potential effects of 9/11 on legal and social change in East Asia, examines East Asian legal reforms in the areas of administrative law and corporate law. These two fields, though not often studied in tandem, both respond to a pair of competing sentiments, one which can be thought of as neo-liberal, and the other which might be termed populist/progressive. These competing sentiments are at play as East Asian legal reforms unfold, and it is as yet unclear which of them will be more fully served once the reforms take hold in society. Complicating the picture are the effects of 9/11 on America's foreign policy, as well as the effects of the Enron crisis in American corporate governance, both of which have shifted America's focus on East Asian law reform from where it stood at the end of the 1990s.

A Discussion of the Duty & Jurisdiction of the Courts to Review Administrative Decisions

The courts have always recognised that judicial review should not amount to the court exercising an administrative discretion legally reposed in a decision-maker. The orthodox view is that the court's role, in performing judicial review of administrative decisions, is to assess whether a decision is legal rather than whether it constitutes the right or preferable outcome. The above statement made by Brennan J in Attorney General v Quin[2]appears to highlight this limitation on the function of the courts in judicial review. However, establishing the appropriate ambit of judicial review of discretionary administrative decision-making has proven to be one of the most contentious and problematic areas of administrative law. Courts and academic writers alike have sought relentlessly, yet with little success, to resolve the seemingly intractable dilemma of the limits of judicial review and the appropriate institutional relationship between the courts and the administrative branch of government. This article will firstly examine the accuracy of Brennan J's statement by comparing it with the views of other experts. Importantly, the reasoning preventing courts from making judgements based on the validity of the facts will be analysed. The degree to which merits review and legal review overlap, or whether such a distinction exists at all, is also a valid issue for discussion. This is often where the confusion lies in the courts given the fine line, and difficulty in defining between, which facts form the merits of the case and which facts go to the legality of the issue. Finally, the essay will discuss what advantages lie in leaving merits review for administrative tribunals and whether in rectifying decisions based on the merits of the case, courts are breaching the separation of powers doctrine. Conversely, what advantages lie in allowing the courts the flexibility to apply merits review will be considered in determining what the courts' role should be in this review process.

The Promotion of Administrative Justice Act from a German Perspective

ABSTRACTThe Promotion of Administrative Justice Act 3 of 2000 is a milestone in the development of administrative law in South Africa. For the first time the general principles of administrative procedure and judicial review have been codified. One of the great challenges of the drafting process was to come up with legislation that ensures just administrative action and its judicial scrutiny but, on the other hand, does not hamper efficient public administration. Whether Parliament was ultimately successful in achieving this balance is discussed. South African legal academics have expressed concerns about whether the definition of administrative action in the Act is too narrow when read against the minimum requirements of the right to administrative justice in s 33 of the 1996 Constitution. The inclusion of the German concept of ‘direct external legal effect’ to define—and to limit—the scope of administrative action has, in particular, been criticised. The main purpose of this article is to provide an insight into how the German courts have interpreted this and other relevant concepts, and thus to contribute to an informed interpretation of the Act. The article goes further in identifying those areas of administrative law that the Act has not codified, but which are important features of German law in balancing the right to judicial review with the need for efficient public administration.

Judicial politics in the D.C. Circuit Court

The U.S. Court of Appeals for the District of Columbia (D.C. Circuit), along with twelve other U.S. courts of appeals, form the middle tier of courts in the federal judiciary between the district courts and the Supreme Court. Because of its location in the nation's capital, which is home to a great number of federal agencies charged with the administration of federal policy, the D.C. Circuit has evolved into a court where cases on administrative law predominate. As a result, not only has the D.C. Circuit grown in expertise in the area of administrative law, but it also shapes policy regarding administrative law through its decisions. In this new book, political scientist Christopher Banks explains that this unique role evolved largely as a result of the politics of the nation's capital. He shows how, in the 1960s, the liberal D.C. Circuit led the way in making law protecting criminal defendants. This activism caused Congress, in 1970, to remove the court's power to hear criminal appeals. This decision, along with new regulation and several judicial appointments by Republican Ronald Reagan in the 1980s, altered the court's docket and made the D.C. Circuit more conservative. As a result, the court's judicial role changed and led to the D.C. Circuit's preeminence in administrative law. Banks clearly shows the important implications of the court's political transformation. Because there are few books on circuit courts and their impact upon national politics and law, Judicial Politics in the D.C. Circuit Court will be a welcome addition to the literature. It is a book for political scientists, legal scholars, and students. Curiously, with few exceptions very little has been written about the D.C. Circuit even though it occupies a central place in the federal court system. Situated in the nation's capital and once seen as an anomalous federal circuit court that had the unusual duty of taking care of federal law and superintending certain local matters arising from the District of Columbia, it emerged as a 'dominant judicial force' in the modern era for some of the reasons explained in this book. Perhaps the most telling one, though, is the fact that it is a political institution, a circumstance that goes against the popular myth that courts, especially influential ones, are apolitical. --from the Preface A rich descriptive account of those influences that have shaped the agenda and decision making in this circuit.--The Law and Politics Book Review With this well-documented book, political scientist Christopher Banks challenges a common misconception among public law scholars that intermediate federal courts are relatively insignificant actors in the judicial process.--Harvard Law Review