Administrative Lawyers Research Articles

Administrative Justice in the Modern Mixed Administrative State: Moving Beyond Taxonomies

Abstract The challenges that government outsourcing presents for administrative law were the topic of considerable scholarly discussion in the 1990s and early 2000s, with broad agreement amongst public lawyers that outsourcing should not result in a loss of the particular kind of accountability with which administrative justice is concerned. Yet, over the past two decades, while government outsourcing has continued and evolved, very little has been done to address these challenges. This article explores the question of when non-court-based administrative justice accountability mechanisms ought to extend to outsourced government functions. I argue that much of the focus of administrative lawyers to date has been on the approaches that courts should take, which has led governments and legislatures to adopt tests and taxonomies largely developed in or for the courts, which distinguish between ‘public’ and ‘private’ functions. I show that these taxonomies are not well adapted to administrative justice mechanisms outside of the courts, are not fit for purpose in many modern government outsourcing arrangements and have resulted in significant accountability gaps. I propose a different starting point for thinking about administrative justice in the modern mixed administrative state, based on normative principles as opposed to categories.

Jubilee Under Textualism

Can the executive order widespread federal student loan forgiveness without additional congressional action? Most likely, a prerequisite for such a jubilee is authorization in the Higher Education Act. And in federal court the HEA is likely to be interpreted through a textualist lens. Textualist statutory interpretation strongly suggests that at least some jubilee authority exists. The Secretary of Education may “waive … or release any … claim” held by the government under certain loan programs. Textual arguments advanced by Trump administration lawyers that this clear language does not authorize jubilee are weak. Nontextual arguments advanced by others are based largely on the premise that the pro-jubilee interpretation of the HEA is fairly new. But after Bostock and McGirt, which elevated the Court’s reading of plain text over previous common understandings of legal documents, the argument from novelty should fail. It is less clear that jubilee authority extends to all federally held loans. The “waive or release” provision governs a now-defunct guaranteed loan program called FFELP, and it may not extend to the current direct loan program. However, the HEA also contains the “parity provision,” under which direct loans have the “same terms, conditions, and benefits” as FFELP loans. So is jubilee authority part of the “terms, conditions, and benefits” of FFELP, and therefore direct, loans? Here, textualism is less helpful. The Department of Education relies on the parity provision to run the direct loan program. But the Department and courts have not explained why this is appropriate. Courts may disregard this administrative precedent unless it is backed by statutory text. A textual analysis of the HEA, relying on the use of words and phrases throughout the statute, dictionary definitions, and the common legal use of key terms, suggests that jubilee authority does extend to direct loans. Among other things, the HEA describes loan cancellation and adjustment provisions as “benefits,” part of the “terms and conditions,” and part of the “terms” of federal student loans. Moreover, the possibility of enjoying jubilee is a “benefit” of direct loans under the ordinary meaning of the word, and the Secretary’s loan cancellation powers are probably “terms and conditions” of guaranteed loans in that they are written into promissory notes and are an integral part of the relevant legal environment. It is not certain that jubilee authority extends to direct loans, but a textualist examination of the issue strengthens the legal case for executive forgiveness.

An Innovative Approach to Movement Lawyering: The Immigrant Rights Case Study

The role of lawyers in social change movements is more critical than ever as communities mobilize around systemic racism, police killings, xenophobia, rising unemployment, and widening economic inequality. The immigrant rights movement is a critical part of these efforts to foment change. This Article leverages an in-depth case study – the rise and fall of the controversial immigration enforcement program known as Secure Communities - to explore how lawyers work as part of a community to challenge power and effectuate change. The dismantling of Secure Communities was widely credited to a relentless campaign to thwart the government’s then-expanding deportation strategy. The authors reviewed over 23,000 internal DHS documents, media accounts, court transcripts, and interviewed 30 administrative officials, congressional actors, organizers, clients, activists, and lawyers involved in the Secure Communities campaigns. This Article draws on extensive evidence to identify an innovative approach to movement lawyering that involved coordinated efforts of movement actors on the micro level (achieving immediate goals), the meso level (effecting broader policy change), and the macro level (organizing communities around narrative identities). The Article concludes that efforts at change were optimized when lawyers, organizers, and activists together built a nimble, adaptive, and modular strategy to enhance concerted power from the ground up. Within this new construct, lawyers can develop new ways of working with communities that synergistic-ally exploit the advantages of various social change strategies at any given time, producing strengthened relationships and lasting investments in organized resistance.

COVID-19 Epidemic: Indian Lawyers in Financial Crisis, Ignored, Depressed: In pursuit of Financial And Moral Support

This research paper aims to discuss about the background, role of lawyers in administration of justice, pre post conditions, economic crisis of Indian Lawyers during COVID-19 Epidemic. An advocate's duty is as important as that of a Judge. Advocates have a large responsibility towards the society. India ranks 68 out of 126 countries, down 3 places from last year in 2019 in “Rule of Law Index” which measures how the rule of law is experienced and perceived by the general public. The Indian Law profession is one of the largest in the world, with more than 2 million enrolled advocates Nationwide. The Nationwide lock down has brought to the fore the great disparity in the legal profession & lock down has financially damages lawyers. Lawyers in India are the most neglected and overlooked during COVID19 comparative of other professional. 70% Lawyers are almost daily wage workers who earn per appearance hearing. COVID-19 has impacted deep and triggered many social, mental and psychological issues as well. In past four months many State Bar Councils came up with circular for Conditional Financial Assistance to Advocates. On 28-05-2020 I have drafted the petition [“Seeking Financial & Moral Support of Hon’ble Supreme Court of India”: “Save the dignity of Advocates”] campaign on change.org platform and sent the petition along with more than six hundred (600) Advocate signatories, on 15-06-2020 to Hon’ble Prime Minister, Hon’ble Home Minister, Hon’ble Law Minister, Hon’ble Chief Justice of India & Companion Judges, Hon’ble Chairman, Law Commission of India, Hon’ble Chairman Bar Council of India with three key demand & payers namely: 1 - Implementation of Advocates welfare fund act, 2001 in COVID-19 pandemic is crisis: 2 - Amendment of Advocates Act 1961, Bar Council of India Rules 1975 [Rules 47 to 52 of Section VII of the Rules deals with restrictions on other employments]: 3 - Monthly Financial support, not Loan. The fundamental principle which determines the privileges and responsibilities of lawyer in relation to the court is that he is an officer to justice and a friend of the court. Lawyers status as an officer of justice does not mean he is subordinate to the judge. It only means that he is an integral part of the machinery for the administration of justice.

Do we need a theory of legitimate expectations?

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

Beyond the End of Ouster Clause History?

The ruling of the House of Lords in Anisminic was quickly in “every administrative lawyer’s manual” but was not necessarily in their good books. Analysis of the judgment was produced in a steady stream in the years after it was handed down. In keeping with the dominant style of the times, much of this commentary was in the best traditions of technical, doctrinal administrative law, only obliquely connected to normative concerns about constitutional order. Fifty years later, styles of public law scholarship have changed significantly but Anisminic remains relevant and the subject of debate. Also in keeping with the prevailing style of public law, contemporary analysis of ouster clauses frames the core issue as a perpetual, complex conflict between the Rule of Law, Parliamentary Sovereignty, and the separation of powers — and differing conceptions of the nature, status, and relationship of those constitutional principles. For the most part, the debate consists of some scholars critiquing the continued application of the ruling as an affront to Parliamentary Sovereignty and others suggesting it recognises and protects the fundamental character of the Rule of Law. Between these two stances are a spectrum of different views about how these two principles, along with the separation of powers, ought to relate to each other. The contours of the contemporary debate around ouster clauses are very well-known, almost to the extent that the debate around the next ouster clauses case (whenever it may arise) is largely predictable. When this state of affairs is seen in light of the fact that the UK Supreme Court has once again effectively confirmed the Anisminic approach in a recent case, there is almost a sense that we appear to have reached, to coin a phrase, the “end of ouster clause history.” It therefore seems a fitting moment to ask one of the most basic questions that can be posed of any legal principle: does it work? If we assume the broad purpose of Anisminc was to ensure common law control on minimum access to judicial review, does it achieve that end? The argument in this paper is that, when placed in the wider context of restrictions on access to judicial review, the Anisminic approach can only make a minimal substantive contribution to ensuring the accessibility of the judicial review process. Other factors, such as the cost risks of bringing a case, exclude far more people from judicial review than ouster clauses. Given this state of affairs, I suggest that those genuinely concerned with access to judicial review, and how it may be protected through law, must now move beyond traditional Anisminc-type arguments and towards considering what the ruling’s underlying philosophy may have to say about other types of restriction.

The Procedure Fetish

The strict procedural rules that characterize modern administrative law are said to be necessary to sustain the fragile legitimacy of a powerful and constitutionally suspect administrative state. We are likewise told that they are essential to public accountability because they prevent factional interests from capturing agencies. Yet the legitimacy-and-accountability narrative at the heart of administrative law is both overdrawn and harmful. Procedural rules have a role to play in preserving legitimacy and discouraging capture, but they advance those goals more obliquely than is commonly assumed and may exacerbate the very problems they aim to fix. This Article aims to draw into question the administrative lawyer’s instinctive faith in procedure, to reorient discussion to the tradeoffs at the heart of any system designed to structure government action, and to soften resistance to a reform agenda that would undo counterproductive procedural rules. Administrative law could achieve more by doing less.

The Procedure Fetish

The strict procedural rules that characterize modern administrative law are said to be necessary to sustain the fragile legitimacy of a powerful and constitutionally suspect administrative state. We are likewise told that they are essential to public accountability because they prevent factional interests from capturing agencies. Yet the legitimacy-and-accountability narrative at the heart of administrative law is both overdrawn and harmful. Procedural rules have a role to play in preserving legitimacy and discouraging capture, but they advance those goals more obliquely than is commonly assumed and may exacerbate the very problems they aim to fix. This Article aims to draw into question the administrative lawyer’s instinctive faith in procedure, to reorient discussion to the trade-offs at the heart of any system designed to structure government action, and to soften resistance to a reform agenda that would undo counterproductive procedural rules. Administrative law could achieve more by doing less.

Administrative Inconsistency in the Courts

The recent Supreme Court case of R (Gallaher Group Ltd) v. Competition and Markets Authority [2018] UKSC 25, [2018] 2 WLR 1583 considered the principle of equal treatment and its application to the conduct of the Competition and Markets Authority (“CMA”) in a dispute over price-fixing in the tobacco market. In this note, we consider two points in the judgment that we suggest are cause for wider reflection by administrative lawyers. First, the nature of the exercise of “tidying up” the grounds of judicial review undertaken by Lord Carnwath and, second, Lord Sumption’s discussion of “wider duties” attaching to public authorities “charged with enforcing the law.”

Top heavy: beyond the Global North and the justification for global administrative law

Global administrative law scholars have argued that global administrative law’s principles and normativity can bring about legitimacy to global governance institutions, and subsequently benefit the people of the Global South. I challenge these recent arguments that suggest global administrative law has managed to incorporate the concerns of the Third World. I caution international lawyers’ attempts to theorize global governance as administration to fill the democracy gap within the global space. My arguments are premised on the history of domestic administrative law and its uses to facilitate the settler colonial project in places like North America. I first examine the two animating claims within global administrative law and then focus, based on taxonomies available within the current literature, on procedural administrative law. The procedural argument has been developed by American legal scholars who want to deploy their common law based notions of administrative law within the global space. Based on this analysis, I develop and deploy a case study from the International Criminal Tribunal for Rwanda as illustration of judicial review within an international criminal institution set up by the UN Security Council. In the final section, I challenge global administrative lawyers’ arguments that global administrative law can be a tool of emancipation for the people of the Global South based on the ICTR case study.

Der Amtsträgerbegriff des Strafgesetzbuchs aus verwaltungsrechtlicher Perspektive

This article investigates how far the criminal law term of a public officer is contigent upon administrative law (so called “Akzessorietat” or accessory). This contingency not only results in a strict conception of the accessory, but can mean in a wider sense that the term is derivative on administrative legal categories. The Criminal Code provides a basic legal definition in its General Part sec. 11 § 1 No 2a-c. In the Special part of the Criminal Code there are a number of provisions which refer to this definition. In this respect the most important provisions are those that demand that the perpetrator be holding a public office (“Amtsdelikte” or crime of a holder of a public office). This article will not discuss what reasons justify the criminalization of such acts. As an administrative lawyer, I do not have the necessary competence to contribute to the criminal law discussion. Instead I confine myself to analyse the impact of sec.11 § 1 No 2 a-c Criminal Code on administrative law. In so far as this provision provides for a hierarchical structure: sec. 11 § 1 No 2 a, declaring a civil servant to be a public officer is strictly accessory to administrative law. This means that such qualification is solely dependent on the character of the employment as a civil servant in the sense of state law and civil servant law. In contrast, sec. 11 § 1 No 2 b is of a limited accessorial nature. The public position mentioned in that provision must only be similar to a fully-fledged position of a civil servant. Irrespective of that similarity, administrative as well as criminal law assessments have to be applied. The most serious problems of interpretation are posed by sec. 11 § 1 No 2 c Criminal Code. At first sight, the terminology of this provision is purely administrative in nature, which might postulate the application of substantive administrative categories and assessments. Upon closer investigation, it becomes evident that this last part of the public office’s definition strongly depends on criminal law principles and values.

Rulemaking and the Guidance Exemption

The Administrative Procedure Act imposes a general obligation on federal agencies to use notice and comment procedures when they adopt rules, but it contains an exemption, § 553(b)(A), for two kinds of rules that lack the force of law — “interpretative rules [and] general statements of policy.” Questions pertaining to the application of this exemption may constitute the single most frequently litigated and important issue of rulemaking procedure in the federal courts today. This article undertakes a comprehensive examination of issues presented by the exemption and offers a unified framework for resolving them. The article deals with procedural questions only and does not address judicial review issues pertaining to these rules. The draftsmanship of § 553(b)(A) has generally been read to imply that interpretive rules and policy statements should be analyzed separately for purposes of the exemption, and indeed two separate lines of cases have developed. However, the track records of those two bodies of case law have not proved equally satisfactory. The courts’ approach to policy statements is essentially coherent — more so than many scholars acknowledge. It revolves around the issue of whether a statement creates a “binding norm,” either legally or in practical effect. Much of the case law on policy statements applies the exemption more narrowly than I would endorse, but the tensions in the precedents result from understandable tradeoffs among competing values. Many of those same values are also reflected in best-practices recommendations adopted by government bodies and professional organizations. In contrast, the case law on interpretive rules is highly unsatisfactory. It is generally understood that an interpretive rule explains existing law instead of creating new law. However, the approaches by which courts apply this criterion are not only vague, but also lack credible policy justifications that would enable courts and agencies to find their way past the vagueness. The courts have identified several circumstances in which they can comfortably conclude that a given document is not an interpretive rule, but they lack workable criteria for determining what documents do fit that description. I propose a simple fix for this difficulty: The “binding norm” principles that courts now use in the policy statement context should, for the most part, apply in the interpretive rule context as well. This consolidation would tend to simplify the law and would bring judicial doctrine into line with the increasing tendency among administrative lawyers to refer to nonbinding rules using the collective term “guidance.” Thus, we should think of these provisions in § 553(b)(A) as comprising, in a significant and not merely nominal sense, a single exemption — the guidance exemption.

The Individual in the Reformation of the UK's Bureaucratic StateeAdministrative Justice, Brexit, and Human Rights

This paper highlights the importance of attending to the necessary reforms that will take place within the UK’s administrative justice system (i.e. within the executive branch) in the wake of Brexit. Whatever results from the UK’s negotiations with the EU, Brexit will necessitate wide-ranging and fast-paced administrative reform. This reform will likely create an environment where there is a higher risk of individual rights violations (or general unfairness to the individual). Consideration must therefore be given to maintaining, and perhaps creating, mechanisms which will provide effective safeguards during this reformation. In this respect, it is suggested that—whatever one’s view about the UK’s present system of rights protection—the long-proposed reform of the UK’s human rights system ought to be parked. More generally, Brexit ought to be understood by administrative lawyers as not only a possible shift in the judicial principles of administrative law but also as a design problem facing the administrative justice system.

Government Lawyers in the Trump Administration

The words and actions of candidate, President-Elect, and now President Donald Trump indicate that this Administration will aggressively seek to use state power with little regard for the rule of law. A great deal has been written about the constitutional and administrative law regulating inter- and intra-branch separation of powers. However, there is no comprehensive legal and theoretical analysis of government lawyers as lawyers, subject to regulation by state rules of professional conduct and other positive legal standards. This Article engages with numerous contested issues in the law of lawyering to provide a constructive legal and ethical conception of government legal advisors. In practical terms, it may serve as a source of guidance for lawyers in the new administration, or as a roadmap for discipline by lawyer regulators. More theoretically, it defends a conception of the rule of law as a practice of reason-giving, not dependent upon legal objectivity or determinacy.

State Liability on Administrative Action with Reference to Civil Rights in India

The Constitution of India has clearly expressed the social and economic goals and has specified agents for achieving the promised social revolution.The increase in administrative functions has created a vast new complex of relations between the administration and the citizen. The modern administration impinges more and more on individual; it has assumed tremendous capacity to affect the rights and liberties of the people. There is not a moment of a person’s existence when he is not in contact with the administration in one way or other. This circumstance has posed certain basic and critical questions for administrative lawyers. There is an age old conflict between individual liberty and government. There thus arises need for constantly adjusting the relationship between the government and the governed so that a proper balance may be evolved between the private interest and the public interest.It is the demand of prudence that when sweeping powers are conferred on administrative organs, effective control-mechanism be also evolved so as to ensure that the officers do not use their powers in an undue manner or for an unwarranted purpose. In securing the balance between public power and personal rights, it is necessary to have efficient administration. In an administrative law case, the private party is confronted by an agency of government endowed by all the power, prestige and resources enjoyed by the possessor of sovereignty. In reality administrative powers are exercised by thousands of officials and affect millions of people. Maladministration results in weakening the government.

Anticipating Delivery

Delivery has often been treated as an afterthought of the “real work” of writing. This article demonstrates how writers in some contexts must think very carefully about delivery from the very beginning of their process. Tracking collaborative writers’ talk, this article demonstrates how a group of writers works to anticipate delivery by repeatedly constructing delivery narratives—that is, stories about the future handoff of their document to audiences. In a complex case of LGBT policy advocacy, the writers weave together multiple delivery narratives in order to achieve consensus, revealing the influence of discursive voices, perspectives, personal and institutional histories, and disciplinary training on the group’s rhetorical strategies. This article also considers how an experienced administrative lawyer constructs delivery narratives, revealing an expert’s strategy to try to get a legitimate hearing for a novel legal interpretation.

The Signal and the Noise in Administrative Law

There has been an unfortunate trend in recent Supreme Court of Canada administrative law cases. While academics, practitioners and lower-court judges try to establish coherent frameworks to understand the general principles of judicial review, the Court has been resolving cases one by one without, with respect, any serious attempt to explain how they fit into its existing body of jurisprudence. The institutional context in which the Court operates, explained in Part I, no doubt influences the Court’s resolution of individual cases in this way.Whatever the background institutional context, confusion is the inevitable result, as I explain in Part II. How should lawyers read these cases: as attempts to resolve one-off issues of substantive law (workers’ compensation law, immigration law, discrimination law and so on) or as continual refinements to an already complex body of administrative law doctrine? I argue in this paper that it is now necessary to distinguish between signal and noise, between those cases that do modify administrative law doctrine and those cases that simply deal with a particular substantive area of law. In Part III, I set out criteria which will help Canadian administrative lawyers to distinguish signal from noise. This confusion seems to me, however, to be unnecessary. As I suggest in Part IV, the Court could take up judicial and academic proposals for a unified reasonableness standard that would allow it to resolve individual cases without creating uncertainty about whether it has also modified administrative law doctrine. Adopting this approach would obviate the need to distinguish signal from noise, because they would both fade into the comforting hum of reasonableness review.

Administrative Law: Characteristics, Legitimacy, Unity

Over the last half century, courts around the common law world have transformed the principles of judicial review of administrative action. Administrative law’s scope and depth have increased dramatically. Increasingly intrusive grounds of review – including for factual error and, in some jurisdictions, breach of substantive legitimate expectations – are available against a wide variety of public and private actors performing governmental functions. Assessing the legitimacy of this judicial creativity has been an important concern of administrative lawyers. However, an assessment of legitimacy cannot be performed without an understanding of the nature of administrative law. I will argue in this paper, building on previous work, that administrative law is marked by three characteristics. It is open, contestable and dynamic. These characteristics give the body of administrative law doctrine developed by judges a unique nature which must be understood prior to assessing its legitimacy. Its openness results from the breadth of legislative grants of power to administrative decision-makers and the open-textured nature of organizing concepts such as reasonableness and fairness. Determining the limits of these powers and concepts requires interpretation, a process which in the common law tradition is infused with value judgments. Its contestability results from the clash of competing values, such as the rule of law, good administration, democracy and separation of powers. By giving effect to these values in the context of particular factual situations, judges decide individual cases and develop administrative law doctrine. Its dynamism results from the contestable nature of these values. Differing conceptions and constellations of the values drive doctrinal change, because the values will be differently conceived and applied in different time periods.Against this backdrop, common to the whole body of judicial review doctrine, challenges to the legitimacy of administrative law can be properly assessed. The development of new fetters on administrative decision-makers has occurred in the absence of express legislative authorization permitting judges to impose restrictions on discretion. Equally, however, legislatures have generally not elected to erect barriers to judicial creativity. Given the openness, contestability and dynamism of administrative law, the question is not whether judicial creativity is permissible, but how best it can be channelled. To the extent that the values to be found in decided cases are consistent with the basic commitments of modern liberal democracy, there can be no objection to judicial application of the rule of law, good administration, democracy and separation of powers, especially when judges follow a pluralist approach and strive to harmonize the values, balancing private rights against public interest while respecting indicators of legislative intent and ensuring that distinct bodies play distinct institutional roles.

Reasons of Law: Dworkin on the Legal Decision

Ronald Dworkin once identified the basic question of jurisprudence as: ‘What, in general, is a good reason for a decision by a court of law?’ I argue that, over the course of his career, Dworkin gave an essentially sound answer to this question. In fact, he gave a correct answer to a broader question: ‘What is a good reason for a legal decision, generally?’ For judges, officials of executive and administrative agencies, lawyers, non-governmental organizations, and ordinary subjects acting in the variety of legal contexts, Dworkin identified the proper basis for a legal decision, and its implications for the form of well-conducted legal reasoning. Dworkin's stance on the above questions can be characterised by two theses. I defend his view by substantiating each. The result is agnostic about the viability of other aspects of Dworkin's legal theory, as it focuses on the grounds of proper legal decision-making. Whatever the fate of his other philosophical views, Dworkin's jurisprudence includes a clear-headed, though morally challenging, understanding of the proper basis for decisions of law.

The Obama Administration and the Use of Military Force John Yoo by Another Name?

The George W. Bush presidency posed a direct challenge to the rule of law in a number of areas, including the use of military force. An initially secret September 25, 2001 memo written by John Yoo and never repudiated by the administration claimed inherent or plenary power for the President to make all decisions regarding the use of military force, whether or not authorized by Congress (and even by ignoring limits Congress attempted to place on presidential power). As a candidate for president, Barack Obama correctly stated that the President can only act unilaterally in an emergency situation when responding to “an actual or imminent threat to the nation”. As President, however, Obama administration lawyers have found new ways to reach the same conclusion as Yoo — that there are no meaningful constitutional or statutory limits on presidential power to order the use of military force.