Development Of Administrative Law Research Articles

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.

The Ultra Vires Doctrine in a Constitutional Setting: Still the Central Principle of Administrative Law

There is currently a good deal of disagreement concerning the constitutional justification for judicial review in English law. The ultra vires doctrine holds that review is simply a function of legislative intention. In contrast, a number of commentators argue that administrative law is a body of judge-made common law which is unrelated to the will of Parliament. The truth lies somewhere between these two poles.The traditional ultra vires doctrine is unsatisfactory because, inter alia, it is unrealistic to assert that judicial review constitutes nothing more than the implementation of legislative intention. However, the attempt of some commentators to exclude intention from the justification for review is equally deficient since this is an affront to the sovereignty of Parliament. By locating the interpretative methodology of ultra vires within its proper constitutional setting and by recognising the importance of the rule of law to the process of statutory construction, it is possible to articulate an explanation of judicial review which is consistent with Parliament's legislative supremacy while avoiding the shortcomings of the traditional ultra vires principle (notably its inability satisfactorily to explain the derivation of the grounds of review; the courts' treatment of ouster clauses; the development of administrative law across time, and the extension of judicial review to non-statutory powers).

Surface Transportation and Administrative Law: Growing up Together in the 20th Century

The concurrent development of administrative law and America's modern transportation system is no accident. Both reflect the technological and societal changes that have defined what the United States is today. The importance of transportation is reflected by the fact that so many of the important events, statutes, and court decisions in the history of 20th century administrative law have involved transportation. The first really powerful administrative agency, the Interstate Commerce Commission, was created to regulate railroads and, later, interstate trucking. The Federal-Aid Highway Program, which can trace its roots to 1893, has been the largest federal grant program for much of this century. The statutory framework for this program, established by the Federal Road Act of 1916 and the Federal-Aid Highway Act of 1921, became the model for all federal grant programs. The Interstate system and other highway programs helped shape the great economic expansion that followed World War II. The effects of these vast new road systems were among the most important factors leading to the growth of modern environmental law in the 1960s and 1970s. In the years ahead, with the accelerating integration of new technology into the transportation system, further concurrent change in transportation and administrative law is inevitable.

Surface Transportation and Administrative Law: Growing Up Together in the 20th Century

The concurrent development of administrative law and America's modern transportation system is no accident. Both reflect the technological and societal changes that have defined what the United States is today. The importance of transportation is reflected by the fact that so many of the important events, statutes, and court decisions in the history of 20th century administrative law have involved transportation. The first really powerful administrative agency, the Interstate Commerce Commission, was created to regulate railroads and, later, interstate trucking. The Federal-Aid Highway Program, which can trace its roots to 1893, has been the largest federal grant program for much of this century. The statutory framework for this program, established by the Federal Road Act of 1916 and the Federal-Aid Highway Act of 1921, became the model for all federal grant programs. The Interstate system and other highway programs helped shape the great economic expansion that followed World War II. The effects of thes...

Administrative Law: Revolution or Evolution?

Professor David Kretzmer has reviewed the development of administrative law in Israel and reached the conclusion that a revolution has occurred. The revolution manifests itself in the substantial widening of the scope of judicial review over administrative acts. For example, the Supreme Court is now willing to review the legality of parliamentary proceedings. This revolution, in his opinion, reflects a change in the conception of the Court's function in this realm. In the past the Court saw itself as limited to the function of deciding controversies between two opposing parties. Today, it is as if another function has been added, and the Court perceives itself as the guardian of the rule of law. Therefore, it is likely to become actively engaged in protecting the rule of law and to invalidate a governmental decision even absent a controversy in the traditional sense. The Court acts in this manner without explaining the basis or the reason for the role that it has assumed. Thus, the question may well arise whether this revolution is legitimate. On the basis of Professor Kretzmer's comments one may ask if indeed the Court, in the struggle over the rule of law, has taken on a function not its own, and in doing so itself infringed upon the rule of law.

The Development of Administrative Law in the Federal Republic of Germany

The Development of Administrative Law in the Federal Republic of Germany

THE DONOUGHMORE REPORT IN RETROSPECT

The Report of the Committee on Ministers’ Powers which appeared in 1932, was principally concerned with problems of subordinate legislation and formal administrative adjudication. Against a background of Dicey's views on parliamentary sovereignty and the Rule of Law, the Committee explored a variety of issues and made numerous proposals. In this article an attempt is made to consider why the Committee was appointed and what has happened since 1932. Particular reference is made to the Report of the Committee on Administrative Tribunals and Enquiries which appeared in 1957. The Reports of 1932 and 1957 are important in identifying significant developments in administrative law during this century.

Federal Administrative Law Developments: 1971

Federal Administrative Law Developments: 1971

Federal Administrative Law Developments: 1970

Federal Administrative Law Developments: 1970

Federal Administrative Law Developments: 1969

Federal Administrative Law Developments: 1969

A Failure of Justice and Defect of Police

On March 7, 1958, the Brighton watch committee decided to dismiss their chief constable; on March 14, 1963, the House of Lords ruled that this decision was ineffective. Among the conclusions of the majority of the House was that natural justice required a hearing to have been given to the chief constable before his dismissal and that in the absence of a hearing the dismissal was invalid. In attempting an assessment of Ridge v. Baldwin, which concerns what has since been called “a doctrine of the highest constitutional value,” it seems necessary (a) to examine the dispute against its administrative background, in particular the intertwining pattern of statute and ministerial regulation governing police dismissal; (b) to consider in detail a number of difficult points of principle raised by the arguments on natural justice; and (c) to set the decision within the broad context of the development of administrative law. It will be suggested that although the House of Lords may have restored to favour a once classic principle of interpretation, this in itself helps but little in the search for a fruitful relationship between the courts and the administration. The interpretation of statutory powers may well be important in particular situations, but the judge's ability to do justice in this way necessarily depends on the words of the statute he is interpreting and thus may stand or fall on the vagaries of legislative history. Had Mr. Ridge been the chief constable of a county force and not of a county borough force, although he could still have invoked the Police Regulations, the rules of natural justice would almost certainly have helped him but little—simply because the County Police Act, 1839, is phrased differently from the Municipal Corporations Act, 1882.

Federal Developments in Administrative Law

1 COMISSION ON ORGANIZATION OF THE EXECUTIVE BRANCH OF THE GOVERNMENT, A REPORT TO THE CONGRESS: LEGAL SERVICES AND PROCEDURE (1955) (hereinafter cited as COMMIsSION REPORT); TASK FORCE ON LEGAL SERVICES AND PROCEDURE, REPORT ON LEGAL SERVICES AND PROCEDURE (1955) (hereinafter sometimes cited as TASK FORCE REPORT). The Chairman of the Commission was Mr. Herbert Hoover. Other members were Attorney General Herbert Brownell, Jr., James A. Farley, Arthur S. Flemming, Senator Homer Ferguson, Senator John L. McClellan, Robert G. Storey, Representative Clarence J. Brown, Representative Chet Holifield, Joseph P. Kennedy, Sidney A. Mitchell and Solomon C. Hollister. 2 PRESIDENT'S CONFERENCE ON ADMINISTRATIVE PROCEDURE, REPORT (1955). See Collins, Administrative Procedure: The Conference Submits Its Final Report, 41 A.B.A.J. 311 (1955). 3 67 STAT. 145 (1953), 5 U.S.C. ? 138a-f (Supp. II, 1954). 4 The Chairman of the Task Force was Hon. James M. Douglas, former Chief Justice of the Supreme Court of Missouri. Other members were Herbert W. Clark, San Francisco, Calif.; Cody Fowler, Tampa, Fla.; Dean Albert J. Harno, College of Law, University of Illinois; James M. Landis, New York City; Carl McFarland, President, Montana State University, Missoula, Mont.; Ross L. Malone, Jr., Roswell, N. Mex.; David F. Maxwell, Philadelphia, Pa.; Hon. Harold R. Medina, New York City, now Judge, Court of Appeals for the Second Circuit; Hon. David W. Peck, New York City, Presiding Justice Appellate Division, First Department, Supreme Court, New York; Reginald Heber Smith, Boston, Mass.; Dean E. Blythe Stason, University of Michigan Law School, Ann Arbor, Mich.; Hon. Elbert Parr Tuttle, Atlanta, Ga., formerly General Counsel for Treasury Department, now Judge, U.S. Court of Appeals for the Fifth Circuit; Edward L. Wright, Little Rock, Ark. Consultants were the late Justice Robert H. Jackson; George Roberts, New York City; and Hon. Arthur T. Vanderbilt, Newark, N. J., formerly Dean of New York University Law School, now Chief Justice, Supreme Court of New Jersey. The Staff Director was Whitney R. Harris, Dallas, Texas. The Research Director was Courts Oulahan, Cleveland, Ohio.

Federal Developments in Administrative Law

Federal Developments in Administrative Law

Developments in Administrative Law, 1930-1940

Developments in Administrative Law, 1930-1940

The Bearing of Myers v. United States upon the Independence of Federal Administrative Tribunals

The rapid development of administrative law during this century has meant a multiplication of administrative tribunals. The functions of these bodies vary widely. Some have regulatory powers, others only fact-finding authority. The Interstate Commerce Commission may fix rates; the Tariff Commission may only investigate differences in costs of production.In all such cases, however, there is fundamentally the same motivation behind their creation. The complexity, technicality, constant fluctuations, and expanding scope of the problems that confront Congress have compelled it to devolve some of its authority upon other bodies, and in some cases to set up agencies for the collection of data as a basis for decision. These very same factors have made our traditional trial courts unsuitable agencies for the exercise of powers thus devolved, and politically controlled bureaus unfit for the investigation of politically significant facts. Congress, therefore, has set up specialized bodies, which are to be manned by experts in particular fields, supplied with elaborate means of research, and authorized to act upon the best obtainable information and opinion. The purpose is thus clearly to cause scientific methods and expert judgment to be brought to bear to the maximum extent possible.It is submitted that for this purpose to be carried out—for the duties of these tribunals to be performed under the influence of the “judicial habit of thought”—it is essential that the members be guaranteed independence in the exercise of their personal judgment, uninfluenced by direct pressure from political superiors or special interests. And it is a matter of common experience that independence of tenure is a prerequisite of independence of judgment.

The Development of Administrative Law in the United States

The Development of Administrative Law in the United States