Administrative Law Doctrine Research Articles

Fiscal Waivers and State 'Innovation' in Health Care

This Article describes how the Department of Health and Human Services (HHS) has used fiscal waiver authorities—delegated power to alter federal payments to states under Medicaid and the Affordable Care Act (ACA)—to influence state health policy choices. It highlights how the agency uses its fiscal waiver authorities to shape which reforms states choose to pursue, in some cases inspiring genuine state innovation and in others encouraging states to adopt reforms favored by HHS or discouraging states from adopting disfavored reforms. Moreover, while HHS has sometimes influenced state policy making in ways that further the substantive goals of the ACA and Medicaid (such as by facilitating reinsurance programs that make coverage more affordable), at other times it has done so in ways that undermine those goals (such as by incentivizing states to cut benefits and eligibility or by stifling state single payer and public option experiments). This Article theorizes fiscal waiver authorities as a double-edged tool from the perspectives of health policy, federalism, and administrative law. Fiscal waiver authorities are a distinctively valuable tool from the standpoint of health policy because they share federal savings, using delegated scorekeeping to overcome the “tyranny of the budget” and its adverse effects on health reform. But the informality currently surrounding the agency’s use of executive conditions on waiver approvals makes fiscal waiver authorities ripe for leveraging and abuse, raising health policy, federalism, and administrative law concerns. This Article concludes by offering concrete prescriptions for the next phase of health reform, which is poised to rely heavily on either existing fiscal waivers or new ones. It recommends that HHS bring greater formality to its process for approving, denying, or negotiating state waiver requests and cautions that if the agency does not do so then courts may force such formality on it by way of non-delegation, federalism, or administrative law doctrine. It also suggests the development of a Pioneer Pathway with greater predictability and fiscal flexibility to facilitate health-promoting state innovations.

Science of Administrative Law in the Russian Federation: state and prospects of development

The author states, that in the Russian Federation, many paradigms of law need to be rethought and modernized. This fully applies to the doctrine of Administrative Law. Based on the arguments presented in the article, the subject of Administrative Law becomes capacious and goes beyond the limits of state administration only. The author, developing the service approach in relation to the state, draws attention to the fact that this idea is not new. It can also be found in the libertarian theory of law developed by Soviet and Russian jurist V.S. Nersesyants. With this approach, the author notes, that the subject of Administrative Law is an organically linked Quadriga of legal relations: first, legal relations arising in the sphere of implementation of the managerial function of public administration, ensuring the progressive socio-economic development of the state; second, legal relations in the field of public order protection and security of the individual, society and the state as a whole; third, legal relations arising in the sphere of public services (reordination relations), which arise on the initiative of an ordinary citizen and are directed towards the authorities; fourth, legal relations arising on the initiative of the applicant on the restoration of violated by unlawful actions of state administration officials the rights and freedoms of citizens.

Публічна адміністрація як системне утворення: аналіз мети, компонентів та структури

У статті на підставі узагальненого аналізу наукових та публіцистичних джерел визначено мету, компоненти та структуру публічної адміністрації як системного утворення. Зауважено, що з активним розвитком реформаційних процесів у сфері публічної адміністрації та її діяльності суттєво посилюється необхідність у науковому осмисленні вказаних процесів та створенні теоретичного фундаменту для збалансованого та виваженого реформування. Водночас підкреслено, що одною з найважливіших умов ефективної трансформації будь-якого публічного чи державного інституту є послідовність та цілісність таких змін, яка, зокрема, забезпечується системним (комплексним) дослідженням об'єкта реформування.
 Зазначено, що правова природа публічної адміністрації протягом усього періоду формування та розвитку адміністративно-правової доктрини завжди привертала увагу вчених-адміністративістів, а також представників інших галузевих як юридичних, так і неюридичних наук. Предметом дослідження, як правило, є окремі аспекти або ж загальна проблематика публічного адміністрування, публічної адміністрації та її суб'єктів тощо. Зокрема, вказаними питаннями в різні історичні періоди розвитку юридичної науки займалась значна кількість уче-них-правників. Водночас констатовано, що лише в окремих наукових працях здійснено спроби проаналізувати публічну адміністрацію як певну систему з перманентними їй ознаками.
 Установлено, що в найзагальнішому вигляді публічна адміністрація як системне утворення являє собою самостійну відокремлену систему, функціонування якої опосередковано певною метою, склад представлений компонентами - елементами й підсистемами, а структура - зв'язками (внутрішніми й зовнішніми), які, власне, й надають публічній адміністрації властивості, необхідні для її системності, стійкості, упорядкованості та цілісності.

AI and Administrative Law

Algorithmically-driven decision-making tools have long existed in Canadian administrative agencies, but administrative law largely fails to address such technologies. This chapter uses the basic principles enunciated in administrative law doctrines to demonstrate how algorithmically-driven decisions fundamentally challenge administrative law notions of fairness, responsibility, and justice. In doing so, it identifies which common law principles, such as notice requirements or prohibitions on sub-delegation, might best apply to algorithmic tools. Other doctrines, it argues, must adapt to meaningfully address the problems algorithmic technologies raise for procedural fairness, responsible and responsive decision makers, and substantive justice. A central dilemma, and an area for future evolution, is how administrative law ought to conceptualize algorithmic tools: should it approach them as a forceful policy, a uniquely persuasive source of evidence, or as though they are an additional decision maker? This chapter illustrates how different answers to this question may require varied doctrinal shifts. It then pinpoints opportunities for legislators and policymakers to develop new governance frameworks that address the dilemmas of algorithmically-driven decision-making. When crafting statutes, policies, and institutional arrangements, legislators and policymakers must meaningfully address the interests of marginalized communities, as algorithmically-driven tools tend to impact members of these communities most harshly. This proposal marks a new path for this area of law, as administrative law principles typically protect individual rights and interests but are less adept at confronting systemic injustice.

Judicial engagement in classical Liberal public governance: a response and extension to Aligica, Boettke, and Tarko

This work considers the role that the judiciary and administrative law doctrines, like judicial deference, would have within the ideal classical liberal administrative state theorized by (Aligica PD, Boettke P, Tarko V, Public governance and the classical-Liberal perspective. Oxford University Press, New York, 2019) in their book Public Governance and the Classical-Liberal Perspective. I argue that even in an environment in which the administrative state is overhauled, that merely changing the incentives and institutions of public administration would not resolve all of the concerns regarding administrative agencies’ behavior nor the courts’ response to their actions. Within this theorized classically liberal system of public administration, there still exists the potential for administrative actions to undermine the proper separation of powers and checks and balances. Such issues could ultimately allow even this more ideal system to devolve into unchecked state power. Therefore, as a check on this potential, the judiciary would still play a necessary within (Aligica PD, Boettke P, Tarko V, Public governance and the classical-Liberal perspective. Oxford University Press, New York, 2019) classical liberal administrative state. To maximize personal freedom and liberty, I argue such a role would also require the courts to reform their current overly deferential stance regarding delegation of authority to administrative agencies, act as an impartial venue of redress for those harmed by the administrative state, and resolve ambiguous delegations of power.

Expanding Horizons: Psychological, Cultural, Institutional, and Technological Perspectives

Scholars in comparative administrative law have long grappled with the issue of methodological uncertainty. Much of this research focuses on two or perhaps three countries regarding a single doctrinal issue. This kind of research is often plagued by common methodological problems related, for instance, to random selection. In this chapter, I have suggested that scholars in comparative administrative law adopt an integrated methodology: placing human subjectivity in the network of accountability. This chapter focuses on four interconnected topics that can lead us to envision the dynamic development of comparative administrative law now and in the future. The first section discusses behavioral insights into administrative procedure and judicial review, which may broaden our perspective on rationality review. I illustrate the application of behavioral science to comparative administrative law with examples of reason-giving, proportionality, and cost-benefit analysis. The second section addresses the desk-level operations of bureaucratic administration and calls for greater attention to how cultural differences — especially in the shadow of colonialism — have perhaps transformed or reinvented administrative law doctrines infused with the characteristics of locality. The third section deals with the complexity of institutions through the eyes of comparative administrative law. Finally, the chapter shifts to a future-oriented discussion about potential conflict and collaboration between governmental use of artificial intelligence and such traditional administrative law doctrines as legislative delegation and judicial deference. The emergence of artificial intelligence, while raising doubts about accountability, has enabled us to contemplate the future of self-government and democracy.

Reason‐Giving in Administrative Law: Where are We and Why have the Courts not Embraced the ‘General Common Law Duty to Give Reasons’?

AbstractThis article has two aims. Firstly, it explores a body of modern challenges to administrative reason‐giving, decided in the five‐year period 2014–2018. Three main themes are drawn out: outright failures to give reasons now seem to be a rare occurrence; a number of considerations help to ensure that at least an outline of reasons is usually offered by decision‐makers; common law fairness plays a limited role in testing the adequacy of reasons. Secondly, it addresses the question of why the courts have not embraced a ‘general common law duty to give reasons.’ Four factors are discussed: doubts that introducing a general duty would add something of substance to the law; difficulties inherent in developing a general formulation of the reasons required; weaknesses in the ‘hortatory’ case for a general duty and weaker commitment on the part of judges than academics to generality as a central feature of administrative law doctrine.

Roman Hausner (1883–1947) – wybitny administratywista Polski międzywojennej

<p>Roman Henryk Hausner (1883–1947) był wysokiej rangi urzędnikiem państwowym w Ministerstwie Spraw Wewnętrznych, o bogatym dorobku publikacyjnym w dziedzinie prawa publicznego. Celem niniejszego artykułu było przedstawienie biografii Hausnera w perspektywie jego kariery urzędniczej i działalności twórczej, z uwzględnieniem roli, jaką odegrał w procesie reform administracji państwowej w Polsce międzywojennej. Z jednej strony w artykule przedstawiono w ujęciu chronologicznym życie Hausnera jako urzędnika i członka szeregu komisji do spraw reorganizacji administracji publicznej w okresie międzywojennym. Z drugiej strony zaś zaprezentowano jego poglądy w zakresie podstawowych instytucji prawa administracyjnego. Te dwa elementy nie stanowią odrębnych części artykułu, ponieważ praca w Ministerstwie Spraw Wewnętrznych i działalność pisarska Hausnera zostały przedstawione jako pewna całość. Taki obraz tworzy bowiem biografia bohatera niniejszego tekstu, który praktyczny aspekt swojej pracy jako urzędnika ściśle łączył z problematyką swojej działalności twórczej. Autor artykułu postawił tezę, że Hausner jako współtwórca ważnych projektów aktów prawnych, propagator daleko idących reform w dziedzinie ustroju administracji państwowej i płodny twórca może być uznany za znaczącą postać międzywojennej doktryny prawa administracyjnego.</p>

ADMINISTRATION OR PUBLIC MANAGEMENT. DILEMMAS OF CONTEMPORARY PUBLIC ADMINISTRATION DEVELOPMENT

The challenges faced by contemporary public administration enforce constant adaptation to the existing social, political and economic realities. Therefore, the question of how to organize a well-functioning, efficient and effective public administration constantly arises. To this end, it seems necessary to conduct research on the organization and models of public administration, developed so far by the doctrine of administrative law. The aim of the analysis of these concepts is to join the discussion on the optimal functioning of public administration in a contemporary legal state, whose primary goal should be to implement the principles of social justice.

The Report of the Death of the Interpretive Regulation Is an Exaggeration

There is a claim about in the scholarly administrative law community that the APA category of interpretive regulations, including tax under IRC § 7805(a), are no longer a viable category under the Procedure Act (APA). Instead, so the claim goes, that have historically been considered interpretive because all they do is reasonably interpret ambiguous statutory text are now legislative under the APA thus subject to the APAs legislative regulations’ requirements for Notice and Comment and Prospectivity. In the article, I quote, with permission, a noted scholar who claims: • regulations promulgated under 7805(a) are legislative rules as that term is understood for purposes of the Procedure Act; • Administrative law doctrine says that legislative rules are those that carry the force of law, while interpretative rules do not. Although the force of law concept is blurry at the margins, I do not see any possible way that one could conclude that 7805(a) do not carry the force of law; • summary, there are no Treasury that are interpretative rules as that term is understood for purposes of the Procedure Act -- irrespective of the terminology embraced by the tax community. If that claim is true for § 7805(a) regulations, it is true for all agency interpreting the statute under similar agency grants (either express or implied). My limited anecdotal polling from talking with administrative law professors is that the claim is a mainstream scholarly position. And courts noise around with the concept, although usually without nuance. By contrast, in the oral argument in Kisor v. Willkie (Sup. Ct. No. 18-15), transcript p. 10), Justice Breyer, an administrative law scholar (taught administrative law at Harvard Law School), said “there are hundreds of thousands, possibly millions of interpretive regulations.” And courts regularly refer to interpretive as if they were a viable APA category. So which is it? Are interpretive generally and Treasury interpretive specifically a viable APA category? The APA recognizes two categories of – legislative and interpretive. The APA's original meaning of those categories may be stated as follows (in broad strokes): • Legislative rules, which must be issued as Notice and Comment regulations, are the law within the scope of the delegation. Legislative rules (regulations) are based on an express statutory delegation of authority to the agency to set the rules that are the equivalent of statutes. In APA parlance, legislative have the force of law, just as statutes do. They have the force of law because Congress has delegated law-making power to the agency. • Interpretive rules, like judicial interpretations, interpret statutory text. Interpretive regulations, like judicial interpretations, do not create law. The statutory text is the law. As an interpretation of the law and not the law, the agency interpretation, like judicial interpretations, can apply from the effective date of the statute. In APA parlance, interpretive do not have the force of law even when a court defers to an agency interpretation. I assert in the article that this summary was the original meaning of the APA distinction between legislative and interpretive and that the interpretive regulation was a viable APA category from the enactment of the APA. There have been no intervening events that have changed the original public meaning. That original public meaning should and does control. This is a substantial revision of an earlier posting on this SSRN page. The revision is as of August 23, 2020.

What to Do About Chevron – Nothing

For thirty-five years, doctrinalists have tormented themselves trying to dissect the Supreme Court’s most infamous administrative-law doctrine: Chevron deference. We have asked when and how it applies. At the same time, we have asked whether Chevron should exist at all. In other words, does Chevron have any normative advantages that warrant its continued existence and prolific use? Despite thirty-five years to work out our differences, the academy — and the courts — remain torn on the answers to all of these questions.

ПРИНЦИПИ АДМІНІСТРАТИВНОГО ПРОЦЕСУАЛЬНОГО ПРАВА У НОВІТНІХ УМОВАХ СЬОГОДЕННЯ: НАУКОВО-ПРАВОВИЙ АСПЕКТ

The article is devoted to the scientific and theoretical research of the modern system of principles of administrative procedural law in the updated conditions of development of the Ukrainian state, proceeding from the needs of quality provision and realization of the legal rights, freedoms and interests of individuals and legal entities in the field of public-legal relations. The author analyzes the regulatory requirements of administrative legislation, the provisions of the doctrine of administrative procedural law to determine the essence and significance of the basic principles that determine the nature, structure, social orientation and the main properties of legal regulation of this branch of law, and on the other – create the proper organizational and functional conditions for the implementation of administrative-processing activities. It is noted that interest in the theory of principles of administrative procedural law is due to the functional purpose of this legal category for: a) the characteristics of the system of administrative procedural law, its separate norms and institutions; b) filling gaps and eliminating conflicts in law; c) the efficiency and “efficiency” of the rules of administrative procedural law during the conduct of administrative and procedural activities. It was established all principles of administrative procedural law are characterized by: ideological orientation, democracy, universality, general significance, higher imperative, efficiency, relative stability, autonomy and certainty, normative certainty. On the basis of an analysis of existing scientific developments on the above-mentioned issues, the author supports and further develops the view on the appropriateness of the division of fundamental principles into: 1) the principles of administrative procedural law that reflect the specifics and content of this branch of law, determine its peculiarities, purpose, tasks and functional purpose; 2) administrative and procedural principles, as established by administrative-procedural legislation, basic requirements that for a long time will not undergo significant changes, determine the nature and content of the subjects of administrative-procedural legal relationships and are used at any stage of the trial (organizational and functional). Formulated scientific conclusions on selected topics are useful for the theory of administrative procedural law in general.

Umowa jako prawna forma działania administracji publicznej w polskiej i niemieckiej doktrynie prawa publicznego

Within the administrative construction of legal forms of public administration activity developed by the doctrine of administrative law, one may distinguish both a civil-law contract (private-law), as well as an agreement having certain features of a public-law contract. The German doctrine of public law, has long been struggling with problems of legal qualification of contracts used as legal forms of action by public administration entities. As part of the work undertaken by the German doctrine of public law, a two step theory, a concept of contract law in administration and a model administrative contract have been developed. Approximation of these theories allowed the Polish doctrine of public law to identify the most important features, which should characterise the theoretical construction of a public-law contract concluded with a citizen or an administrative contract. First of all, it should be concluded by a public administration entity on the basis of its competence. The administrative agreement should concern the relationship between the administration and the citizens. Secondly, the subject matter of the contract should be governed by public law and relate exclusively to the performance of public administration tasks. Thirdly, disputes arising from an administrative agreement should be submitted to the jurisdiction of administrative courts. The article shows that from the point of view of legal protection of the individual this is a crucial matter. Although the legislator has not decided to introduce an administrative agreement into the Polish legal system, many of the contracts already in operation under Polish law have certain features which at least in part resemble the administrative agreement described above. Such an administrative agreement often concerns the relationship between public administration and the citizen and is concluded in connection with the performance of public tasks. De lege ferenda the conclusion of an administrative contract should be subject to review by the administrative courts.

MANAGEMENT (ADMINISTRATIVE) ACTIVITY OF THE CONTROLLING AUTHORITIES IN THE AREA OF TAXATION: ESSENCE AND TYPES

The innovation of conceptual provisions of the administrative law doctrine that are based on the priority of rights, freedoms, legitimate interests of an individual, service orientation of the public administration authorities’ performance affects the essence of the controlling authorities’ management (administrative) activity in the area of taxation and requires its fundamental upgrade. Drafting of theoretical provisions as to the essence and the types of the controlling authorities’ management (administrative) activity in the area of taxation should be based on a profound theoretical and legal analysis of the existing concepts and doctrines and their comparison with the current developments in the public administration authorities’ performance that carry out similar activities. In addition, it’s reasonable to highlight the issues of legal regulation of the relations with respect to the controlling authorities’ management (administrative) activity carried out in the area of taxation. The research objective is to substantiate the theoretical background of the controlling authorities’ management (administrative) activity in the area of taxation set out in the form of a list of the substantive characteristics of such activity, the provisions that reflect its peculiarities, as well as the systematization of the lines and types of such activity. The object of the research is the social relations of a public-law nature, related to the activities of the controlling authorities in the area of taxation. The contemporary concepts and doctrines developed by the scientists through critical thinking constitute the theoretical basis of the scientific analysis. This article explores the scientific papers related to the issues of public administration, administrative law, and administrative activity. System-based approach constitutes the methodology of the scientific analysis which made it possible to single out the elements of the administrative activity system, to reveal their content and to take into account their specific features when determining the nature of the controlling authorities’ management (administrative) activity in the area of taxation. The result of this research is the theory that reveals the current essence of the specified activity and its lines. This article places emphasis on the existence of public and service component of the specified activity.

Essay: The World After Seminole Rock and Auer

For more than 70 years, the Supreme Court of the United States has consistently held that the federal courts must defer to an agency’s interpretation of a vague or ambiguous agency rule. The Court adopted that principle in Bowles v. Seminole Rock & Sand Co., and it has long treated the ruling as if it were a statute rather than an opinion by applying it in a wide range of contexts with little regard to whether their facts resemble the ones that gave rise to the Court’s original decision. Seminole Rock gave birth to what has become a well-settled administrative law doctrine, one that the Supreme Court and lower courts have cited on more than a thousand occasions. The Supreme Court should overrule it. Wrong when decided in 1945, Seminole Rock should have passed into history when Congress enacted the Administrative Procedure Act (APA), which directs courts to review and set aside agency actions that rest on an erroneous view of the law. The ruling also stands in obvious tension with two far more deeply settled principles of Anglo-American law: the proposition set forth in Marbury v. Madison that it is “emphatically the province and duty of the judicial department to say what the law is” and the principle — which traces its lineage to maxims that stretch back to Judge Edward Coke, William Blackstone, Demosthenes, and Cicero — that judges will be independent from the parties to a dispute. The Seminole Rock decision, however, effectively empowers one party to a lawsuit — a federal agency — to decide the legal issue. To date the Supreme Court has never recognized the existence of this conflict, let alone attempted to resolve it. The Supreme Court has an opportunity this Term to correct its mistake and “retire” Seminole Rock in Kisor v. Wilkie. The world as we know it would not end if the Court did so. While federal courts would no longer be constrained by an agency’s unpersuasive, unreasonable, or unlawful construction of a regulation, agencies would still operate much the same, issuing regulations that touch on nearly every aspect of Americans’ daily lives, from highways to healthcare. It is time for courts — not agency officials — to decide questions of law.

РОЗВИТОК АДМІНІСТРАТИВНОГО ПРАВА ТА АДМІНІСТРАТИВНО-ПРАВОВОЇ ДОКТРИНИ В ЛИТВІ

The system of national law and the corresponding system of democratic authorities had to guarantee optimal protection of the individual’s fundamental freedoms and rights, and help to create human welfare. Science of administrative law is constantly evolving, and its insights are strategic in nature, oriented towards the future. There is often a struggle for new ideas, opinions, concepts, paradigms to be embedded or denied. The new, old, inaccurate statements are changed to be more accurate, the new ideas criticize the old ones, and life practices raise new problems that science must answer rationally. The science of administrative law in Lithuania is not static, it is constantly changing as the administrative law itself changes. The concept of administrative law is changing, its regulation is expanding. The science of administrative law is an integral part of Lithuanian law science, where the specialists of administrative law – scientists investigate the essence of this branch of law, its subject matter and separate institutes and in general all actual problems of administrative legal practice and science of the whoel country. This article is the first scientific research in the cycle of articles “Development of Administrative Law and Administrative Legal Doctrine in Lithuania”. The purpose of this article is to present the development of administrative law and administrative law doctrine in Lithuania since 1990 by analysing the works of Lithuanian scientists in this field through the categories defined in the research tasks. In order to achieve the aim of the article, the following tasks are raised: briefly to introduce and discuss the development of Lithuanian administrative law science and administrative law as a category, to define and analyse the goals of administrative law, the subject of regulation and the system of administrative law in Lithuania. In order to achieve the aim and tasks of the research, the analysis of the works of Lithuanian scientists and the main laws implementing the administrative legal regulation of Lithuania was performed. Methods. Historical comparative, documents’ analysis, synthesis and other methods were used for research. Results of research showed that Lithuania has modern administrative law and administrative justice system, that meets nowadays meets and European Union justice standards’ requirements. Conclusions. We can conclude that Lithuanian scientists understand the administrative law in broad sense as law of management and described quite wide range of its regulation subjects. After Lithuania’s accession to the European Union and its commitment to take over its acquis communautaire, the entire Lithuanian legal system, together with administrative law, had to adapt to change. Implementation of the provisions of the European Union legislation in Lithuanian law has become a priority. The abundance of administrative legal regulation at European Union level and the need for its application in the case-law have created challenging tasks for administrative law science. An accurate analysis of the implementation of European Union legislation in the systems of state power and public administration in Lithuania, analysis of administrative legal systems of the Member States of the European Union, search for similarities and differences, effective defence of the rights and legitimate interests of a person when a Member State misapplies (waives) the provisions of European Union legislation, the jurisdiction of national courts to deal with damages where, for example, damage caused by inappropriate application of European Union law is made by a court of final instance in the state, and other issues become the subject of modern administrative law research.

ПРОБЛЕМИ РОЗВИТКУ АДМІНІСТРАТИВНОГО ПРАВА ТА АДМІНІСТРАТИВНО-ПРАВОВОЇ ДОКТРИНИ В РЕСПУБЛІЦІ ВІРМЕНІЯ (ПОНЯТТЯ Й ПРЕДМЕТ АДМІНІСТРАТИВНОГО ПРАВА, АДМІНІСТРАТИВНЕ ПРАВО В СИСТЕМІ ПУБЛІЧНОГО ПРАВА, СИСТЕМА ТА НАУКА АДМІНІСТРАТИВНОГО ПРАВА)

ПРОБЛЕМИ РОЗВИТКУ АДМІНІСТРАТИВНОГО ПРАВА ТА АДМІНІСТРАТИВНО-ПРАВОВОЇ ДОКТРИНИ В РЕСПУБЛІЦІ ВІРМЕНІЯ (ПОНЯТТЯ Й ПРЕДМЕТ АДМІНІСТРАТИВНОГО ПРАВА, АДМІНІСТРАТИВНЕ ПРАВО В СИСТЕМІ ПУБЛІЧНОГО ПРАВА, СИСТЕМА ТА НАУКА АДМІНІСТРАТИВНОГО ПРАВА)

Administrative procedure in the modern doctrine of administrative law as a sphere of objectivization of the status of parties of legal proceedings

Administrative procedure in the modern doctrine of administrative law as a sphere of objectivization of the status of parties of legal proceedings

РОЗВИТОК АДМІНІСТРАТИВНОГО ПРАВА, АДМІНІСТРАТИВНОЇ ТА ПРАВОВОЇ ДОКТРИНИ В РЕСПУБЛІЦІ БІЛОРУСЬ ПІСЛЯ ЗДОБУТТЯ НЕЗАЛЕЖНОСТІ

In Belarus, the national doctrine of administrative law has been oriented to a large extent towards the Soviet and modern Russian legal traditions, albeit with some distinct contextual features. In this work, we review the positions of some of the most authoritative scholars, and make a number of summative judgements and conclusions. The primary aim of administrative law is to provide and create a regulatory framework for the exercise by the government authorities of their mandate and powers. The objective of administrative law is to govern and regulate the interactions between the executive power and other legal subjects in the performance of its functions. In the Belarusian doctrine, the predominant position of most scholars is that the scope of administrative law should include the administrative legal relations arising in the course of the exercise by the public administration bodies of their administrative functions, including of regulatory mandates towards external bodies, and in relation to the enjoyment by the citizens of their rights and liberties. In Belarus, the system of administrative law is customarily understood as an ordered framework composed of institutions, norms and domains, which may be divided into four sections. The first section encompasses the institutions that determine the legal status in the area of public administration of the citizen, of state bodies, of non-governmental organizations and of civil servants, it also incorporate the institutions that exercise control over the subjects of administrative law. The second section encompasses the regulations that govern liability under administrative law. The third section incorporates the norms of administrative procedure. The fourth section includes provisions that constitute the administrative legal framework for the management of the economy, socio-cultural and other spheres. Each section is comprised of the relevant legal institutions and sectors. The greatest challenge for administrative law of in Belarus seems to be the definition of the administrative procedure, which has not changed since the Soviet period. The alternative propositions presented in this work are of a purely theoretical character and should eventually be superseded by a legal definition, which views it as a distinct type of legal procedure governed by the norms of administrative procedure law grounded mainly in the Code of Execution Procedure for administrative torts. The legal term “administrative procedure” in Republic of Belarus is still identical to the concepts “administrative tort procedure” or “procedure for the hearing of administrative tort cases”. The main method of this study is that of integrated comparative analysis, with elements of the historical and formal-logical method. As a part of a comprehensive study in administrative law in the former Soviet Union, this work is intended to make a contribution to academic debate, by deepening and broadening its scope.

The Standard of Review for Questions of Procedural Fairness

In 2014, the Supreme Court of Canada affirmed in Mission Institution v Khela that the standard of review for administrative procedures is correctness. Despite the seeming finality of the decision, case law has demonstrated tensions and ambiguities on the matter. Tracing the origins of this standard, the author demonstrates that this recent call for correctness conflicts with previous calls for deference and with other aspects of contemporary administrative law doctrines. In addressing these conflicting decisions, the author argues that applying the correctness standard to all procedural questions is undesirable as a matter of principle and would lead to unnecessary confusion. The appropriate degree of scrutiny that courts should apply to agencies' procedural choices will vary according to a number of factors, including legislative wording, the general or statute-specific nature of the procedural protections invoked and the type of decision-making process at issue. The author argues that courts can better take these factors into account by subjecting agencies' procedural choices to a robust form of reasonableness review.