Principles Of Administrative Law Research Articles

What is the standard of review for patent litigation in Canada?

In Canada patents are administratively granted by the Commissioner of Patents. Yet administrative law principles have never been applied when determining the validity of a patent during litigation. Courts have always proceeded on the basis of a trial de novo to determine whether (on a balance of probabilities) the patent was indeed valid and properly granted. This paper examines the apparent tension between the Patent Act, patent jurisprudence and administrative law principles in litigating the validity of a patent.

Administrative Absurdity: Why the Judiciary Should Uphold EPA's Use of the Administrative Necessity and Absurd Results Doctrines within the Tailoring Rule

In Massachusetts v. EPA, the Supreme Court’s decision prompted the Environmental Protection Agency ('EPA' or 'Agency') to determine whether greenhouse gases ('GHG') endanger human health and welfare, and consequently whether the Clean Air Act ('CAA' or 'Act') should have the power to regulate GHG. Since that time, and in the absence of substantive climate legislation from the legislative branch, EPA issued a series of regulations culminating in the creation of a 'tailoring rule.' This rule outlines EPA’s authority to regulate only the largest GHG sources and exempt sources that emit less than the tailored applicability criteria. To achieve this goal, EPA relied on the administrative law principles of Chevron deference, 'absurd results,' and 'administrative necessity.' Since its issuance, a number of sources have challenged the validity of EPA’s actions.This Comment examines the efforts to curtail EPA’s regulation of GHG under the CAA and highlights some of the weaknesses in the approach currently taken by its challengers, notably a group of states and industry. This Comment begins by introducing the tailoring rule then proceeds by providing background on the legal doctrines that EPA has employed to justify the tailoring rule, specifically the doctrines of Chevron deference, 'absurd results,' and 'administrative necessity.' The Comment continues by addressing some of the legal challenges of the tailoring rule, with a focus on the arguments advanced by the state of Texas, and the strength and weaknesses of these challenges. This Comment concludes by arguing that under a permissibly broad reading of the Act, the Act permits EPA to modify the applicability criteria that determine which stationary sources and modification projects are subject to permitting requirements for GHG emissions under the CAA.

In Search of Coherence: The Charter and Administrative Law Under the McLachlin Court

With her appointment as Chief Justice, Madame Justice McLachlin inherited one of the most exasperating analytical tangles in modern public law. When an alleged Charter violation occurs as a result of an administrative decision, should the judicial review analysis proceed on Charter principles or administrative law principles? Both analytical avenues engage rich bodies of jurisprudence designed to check government action where it impairs individual interests. Both number among the Supreme Court’s most celebrated doctrinal innovations of the last three decades. And both have strong purchase for legal experts of each field examining public law problems through the lens of their respective traditions. However, these two analytical avenues sit uncomfortably alongside one another. Whenever administrative decision-making is involved in the alleged breach of Charter rights, the court must make a preliminary choice as to the analysis to be pursued and this choice, in turn, determines the range of public law remedies available.This uneasy relationship between administrative law and the Charter has surfaced more frequently in recent years as Charter jurisprudence has matured and possible Charter violations are weeded out of proposed legislation and regulations before they are ever enacted. Charter violations are more likely to arise as a result of discretionary administrative action rather than appearing explicitly in the wording of a legislative or regulatory enactment.Our analysis is divided into two parts. The first part tracks the Supreme Court’s approach to the relationship between administrative law and the Charter prior to the McLachlin Court, while the second part examines the approach of the McLachlin Court. We conclude that the Court has yet to develop a workable and coherent approach to the relationship between the Charter and administrative law. The seeds of a possible solution have been sown with the Vancouver Transit decision but we suggest that, although this new approach has won short-term acceptance among the members of the McLachlin Court, it is unlikely to succeed in reconciling public law analysis and values over the long term.

Public Health Ethics, Legitimacy, and the Challenges of Industrial Wind Turbines: The Case of Ontario, Canada

While industrial wind turbines (IWTs) clearly raise issues concerning threats to the health of a few in contrast to claimed health benefits to many, the trade-off has not been fully considered in a public health framework. This article reviews public health ethics justifications for the licensing and installation of IWTs. It concludes that the current methods used by government to evaluate licensing applications for IWTs do not meet most public health ethical criteria. Furthermore, these methods are contrary to widely held fundamental principles of administrative law and governmental legitimacy. A set of decision-making principles are suggested to address this situation that are derived from existing and emerging legal principles in Canada and elsewhere. These include the Precautionary Principle, the Least Impactful Means (Proportionality) Test, and the Neighbor Principle.

Globalizing of Administrative Law

What if the same international trade dispute is adjudicated both in a domestic court and in an international tribunal? The conventional view – dualism – may tolerate two conflicting legal conclusions in this situation. However, in the Habermasian postnational constellation, such legal dissonance appears not only normatively troublesome but also practically taxing to global business. Against the backdrop of the recent “double remedies” dispute between the United States and China, this Article seeks to offer a modest solution to this dilemma via a discursive engagement between a domestic court and an international tribunal. The Article argues that the WTO Appellate Body qua trade law adjudicator could have employed the same hermeneutical tool, such as “reasonableness,” adopted by the United States Court of International Trade (USCIT) when the latter reduced the Commerce Department’s discretion over the double remedies issue to null. The Article further views that as such an engagement between a domestic court and an international tribunal, as well as the resultant discursive connection between them, matures and deepens, both courts may form a broader interpretive community, in which they can establish an identifiable pattern of common administrative law principles. This visible, and thus accessible, trans-judicial practice in overlapping issue-areas, such as trade remedy, this Article submits, is a propitious step toward the reconciliation of domestic and international administrative law, and eventually the globalizing of administrative law. The Article concludes that this diffusive and osmotic global administrative law-making process offers a novel dimension of understanding transnational-international law.

Rule of Law and Modern Administrative Law

Introduction: Rule of law is classical principle of administrative law. As a matter of fact this principle was one of the principles that acted as impediment development of Administrative Law principles. The irony further is that the rule of law is now an important part of modern Administrative Law. Whereas the rule of law is still the one of the very important principles regulating in common law countries and common law derived countries modern laws has denied some of the important parts of rule of law as proposed by Dicey at the start of 19th Century.Dicey Rule of Law: The concept of rule of law backs to the time of Aristotle. Aristotle ruled out the concept of rule under discretion by all means and tried to convey his followers that given the choice it is always rule of law that scores over rule of discretion. In Modern times the rule of law was propounded by the Albert Dicey, a British jurist and Philosopher. He gave following three postulates of rule of law: 1. Everyone is equal before the law. 2. Sanctions have to be backed by law. 3. Courts are the ultimate body and supremacy of court is ambivalent in civilized society.He was firm proponent of the concept and very influential thinker of his times. Though the first two principles are still in almost every legal system of world, the third principle was protested many of jurists of that time. The Dicey in particular opposed the principle of French system of Droit Administratif. England at that time was in fact propounding some quasi legislative and quasi judicial processes which were taken cognizance of English thinkers of that time; still the whole common law system of country was blindfolded with the Dicey's philosophy of “rule of law.”Dicey's Rule of Law and Modern Administrative Law: Dicey's view and proposition of rule of law has succeeded in part and wasn’t sustainable on other. Most of the modern legal system implements the principles of judicial review and similar principles of proportionality and legitimate expectations. Dicey's views on written and unwritten constitutions are subject to much debate and discussion. What can be said is that some written constitutions (e.g. the U.S. Constitution) have been quite successful at providing a framework within which individual rights are protected while others (e.g. some of the Soviet blocks constitutions) have been near total failures.The modern administrative law is fine mixture of Droit Administratif, the French law system and Dicey rule of law. The sophisticated combination of the two principles has given rise to powerful and vast body of executive. In fact the development of modern Administrative law is consequence of development of administration and its side effects. Objective of Paper: In this paper I am going to critically examine the pros and cons of modern administrative law in terms of balance of efficiency and bureaucracy. This paper shall also discuss the constitutional provisions all over the world and compare the implementation part of it in governance.

Some Australian Reflections on Roncarelli v. Duplessis

Roncarelli v. Duplessis figures far more frequently in Australia’s secondary literature than in its court decisions, and it is noted not for its invalidation of Prime Minister Duplessis’s actions, but for its award of damages where judicial declaration of invalidity would usually be the only remedy. Invalidating Duplessis’s interference with Roncarelli’s liquor licence would have been the easy part of the case had it been tried in Australia. Australian statutes afforded good protection to liquor licensees, and general administrative law principles confined seemingly unfettered discretionary powers in less solicitous statutory regimes. In addition, the constitutional abolition of internal trade barriers used to be taken as banning unfettered regulatory powers over interstate traders. Duplessis’s tort liability was the hard part. His assumption of legal power was not deliberate, but it was extraordinarily indifferent to questions of legality. Justice Rand characterized this as “malice”, which in turn triggered liability to a uniquely public law tort known nowadays as misfeasance in public office. That tort is likely to cover more forms of non-deliberate official misconduct in Canada than in Australia, whose High Court usually avoids open-ended legal principles, particularly those according immediate operative force to substantive conceptions of the rule of law.

O Fenômeno da "fila dupla" ou "segunda porta" no sistema único de saúde e a inobservância ao princípio da impessoalidade: um exercício de aproximação de conceitoS

The present article was written in an interdisciplinary field, uniting the Collective Health and the Law areas of study. The purpose of the article was to do a bibliographic review of Administrative Law, Health Law, Collective Health and Iniquities in SUS works. This paper's conceptual basis resides mainly in authors that define the Administrative Law principles, the access concept and also in the ones who denounce the iniquities in SUS, specially the "second door" or "double line" phenomenon.

Kumarangk (Hindmarsh Island) and the Politics of Natural Justice under Settler‐Colonialism

This article examines the impact of the application of apparently impartial principles of procedural fairness and natural justice on the construction of “authentic” and “inauthentic” knowledge of Aboriginal culture. It discusses the progression of the Kumarangk (Hindmarsh Island) court cases and the legal construction of public participation in the making of political decisions affecting Aboriginal interests in land. In examining the politics of competing interests in land, this article reflects on the tension between Indigenous interests in land and settler developmentalism in relation to the Australian jurisprudence of procedural fairness and natural justice. The arguments running through the article concern the questions of the ways in which the liberal restraint on power is embodied in the impartial principles of administrative law, where that power creates rather than infringes upon rights, why it generates a particular legal construction of Aboriginal interests in land and cultural heritage, and the extent to which this plays a role in the maintenance of relations of settler‐colonial dispossession.

Public Law and The Executive

The contemporary public law jurisprudence of the High Court has transformed the basis of judicial review of executive action, removed traditional restraints on the scope of executive power, reinforced the separation of powers, and transformed the federal compact by identifying new constitutional limits on State institutions. The High Court has, over the last two decades, emphasised the constitutional dimension of a number of terms found in the Constitution by characterising them as “constitutional expressions”. These expressions have been imbued with substantive force by identifying a bundle of essential characteristics of each such expression, being characteristics that Parliament cannot alter. The impact of this new approach on executive power has been the emergence of a constitutional foundation for Commonwealth and State administrative law, a renewed focus on the constitutional foundation of executive authority, and the extension of the separation of powers doctrine to State institutions. This development is of profound significance for the entire range of interaction between the judiciary and executive government.

Regulating the Root: The Role of ICANN as Regulator, and Accountability

The Internet is emphatically not a government free zone. A central part is ICANN - the Internet Corporation for Assigned Names and Numbers - the institution which regulates the ‘root’ of the internet (the domain name system and internet protocol addresses). This a fundamental element of the architecture of the Internet. We would be, literally, lost without it. In a sense, the code of the Internet, its protocols and languages are regulation - they control how the system behaves. ICANN is the regulator who regulates that ‘regulation.’ Principles of global administrative law can, once suitably modified for the context, suggest the most effective reforms.ICANN displays features characteristic of a hybrid public-private regulator. Authority is formally delegated by the US, but importance is placed on the acceptance of ICANN as legitimate by the wider community (including technical experts). It is formed as a corporation, and regulates on a contractual basis. However, it is charged (legally) with pursuing the global public interest due to the way in which it was set up as a non-profit organization, and is essentially a monopoly. Institutional design has been approached from the start, and through successive reforms, with democratic norms in mind. However, there has historically been capture by powerful interests - due to the accountability deficit, in particular.In order to pursue reform effectively, ICANN should focus on transparency, giving reasons, and strengthened review. To be successful however, requires strong backing from all states and an 'entrepreneur' type Board with the expertise, interest, and focus on GAL ideas, and genuine representatives to form a coalition to push for reform effectively. Counter-intuitively, a crisis of legitimacy created by criticism that ICANN is unaccountable might strengthen the force of democratic norms in its design, as NGOs and others are empowered to demand reform.

'To Remand, or Not to Remand': Ventura's Ordinary Remand Rule and the Evolving Jurisprudence of Futility

It is a foundational principle of administrative law that a reviewing court should not dispose of a petition for review or appeal on grounds not relied upon by the agency, and should not reach issues in the first instance not addressed administratively. In such circumstances, there is a strong presumption that the reviewing court should remand the case to the agency for further proceedings rather than reach out to decide the disputed issues. The United States Supreme Court explicitly extended operation of the “ordinary remand rule” to the immigration context in its 2002 decision in INS v. Ventura. Notwithstanding subsequent Supreme Court clarifications of how this rule operates in immigration law, several federal courts of appeals have begun to develop a jurisprudence of futility, declining to remand cases to the Board of Immigration Appeals, despite errors in the underlying decision, in certain set circumstances.This article assesses this evolving jurisprudence with the aim of discerning whether it is somehow complementary to the “ordinary remand rule,” or runs afoul of the general remand prescription. In fact, many of the cases in which courts have held remand would be futile have little, or nothing to do with the courts’ authority to remand, while a number of the other cases surveyed represent legitimate exercises of the courts’ discretion to decline remand. Nonetheless, several decisions either explicitly contradict the Supreme Court’s remand directive, or give hints that, in certain cases, the court would feel free to decide an issue delegated to the agency’s discretion, even in the absence of an administrative decision in the first instance. Although the decision of whether to hold and decide a case, or whether to remand to the agency for further proceedings, is necessarily a subjective and discretionary determination, the article concludes that there are broad operating procedures that may appropriately govern the exercise of this discretion, ensuring that both reviewing courts and administrative agencies fulfill their mandates.

Good Administration in EU Law and the European Code of Good Administrative Behaviour

The Code of Good Administrative Behaviour has passed fairly unnoticed in academic research on the principle of good administration. However, it is an important source to understand the meaning of this principle and concept in European administrative law, since it encompasses some of its dimensions that tend to be overlooked by the case law of the European Courts and also by European law scholars. Furthermore, contrary to what recent developments let believe – namely, the fact that the Commission refuses to put forth a proposal for a European regulation that would make the provisions of the Code binding – the Code remains relevant to map possible legal developments regarding good administration. The article1 explains the reasons and meaning of the link between the Code and Article 41 of the EU Charter of Fundamental Rights, analyses the complexity and uncertainty of the concept “good administration”, characterises its different legal and non-legal facets highlighting the interconnections between them. In addition, it demonstrates how these different layers are reflected in the Code, underlines the Code’s links with previous EU law developments, its added legal value and the functions it currently performs, considering also the different paths through which further legal, binding developments could derive from the Code.

Two Sides of the Same Coin: Judicial Review Under APA Sections 706(1) and 706(2)

Judicial review of agency inaction under Section 706(1) of the Administrative Procedure Act (APA) has been often been doctrinally incoherent and unclear. There is confusion about proper standard of review, the distinction between agency action and inaction, and the full scope of the presumption of unreviewability for agency non-enforcement decisions laid out by the Supreme Court in Heckler v. Chaney. The result is not just problematic on an abstract level - judicial review of agency inaction is increasingly important in regulatory fields such as environmental law, as shown by the Supreme Court's recent decision in Massachusetts v. EPA. Building on a framework developed in a separate paper that identifies judicial deference to agency resource allocation decisions as a crucial factor in this field, this paper applies that framework to provide coherence and clarity to the doctrine of judicial review of agency inaction. In particular, the paper shows that there is no fundamental difference between judicial review of agency action under Section 706(2) of the APA and of agency inaction under Section 706(1). The same underlying principles of administrative law apply in both circumstances, with the level of deference varying depending on the importance that resource allocation plays in the agency's decision. Likewise, a wide range of exceptions to judicial review of agency decisions that the Supreme Court has carved out can be understood as the result of judicial deference to agency resource allocation.

Global Governance: The World Trade Organization's Contribution

Democracy and administrative law concern ideas of governance, legitimacy, and accountability. With the growth of bureaucracy and regulation, many democratic theorists would argue that administrative law mechanisms are essential to achieving democratic objectives. This article considers the World Trade Organization’s (WTO) contribution to governance both in terms of global administrative law and democracy. In relation to administrative law, it first explores the extent to which the WTO’s own dispute settlement process contributes to this area. Second, it considers the operation of administrative law principles embedded within the WTO Agreements on Members. For example, the WTO Agreements require that certain laws be administered “in a uniform, impartial and reasonable manner.” This obligation was recently considered by the Appellate Body, but uncertainty remains about the scope this provision has to permit WTO panels to review domestic administrative practices. In relation to the WTO’s contribution to democracy, this article first considers the challenges and limitations of the current system of decision making within the WTO and compares it to democratic theory. Second, it examines how democracies comply with the findings of WTO dispute settlement tribunals and how compliance could be improved. It concludes by speculating on the implications of this discussion for public international law more broadly.

Global Governance: The World Trade Organization’s Contribution

Democracy and administrative law concern ideas of governance, legitimacy, and accountability. With the growth of bureaucracy and regulation, many democratic theorists would argue that administrative law mechanisms are essential to achieving democratic objectives. This article considers the World Trade Organization’s (WTO) contribution to governance both in terms of global administrative law and democracy. In relation to administrative law, it first explores the extent to which the WTO’s own dispute settlement process contributes to this area. Second, it considers the operation of administrative law principles embedded within the WTO Agreements on Members. For example, the WTO Agreements require that certain laws be administered “in a uniform, impartial and reasonable manner.” This obligation was recently considered by the Appellate Body, but uncertainty remains about the scope this provision has to permit WTO panels to review domestic administrative practices. In relation to the WTO’s contribution to democracy, this article first considers the challenges and limitations of the current system of decision making within the WTO and compares it to democratic theory. Second, it examines how democracies comply with the findings of WTO dispute settlement tribunals and how compliance could be improved. It concludes by speculating on the implications of this discussion for public international law more broadly.

The Administration of Arms Control: Ensuring Accountability and Legitimacy of Field Operations

AbstractInternational arms control operations are based on a foundation of global programs and instruments. An analysis of these operations gives an indication of the many challenges they face in practice and what administrative means have been developed to address them. Special attention is devoted to the secondary norms of accountability and to the relationship between the internal legal system of the field operation, often conceived as a largely autonomous self-contained regime, and the legal system of its higher authority and general international law. Finally, the increasingly relevant participatory role of civil society in arms control and its conformity with basic principles of international administrative law will also be examined.

Back off but back up! Administrative law rightly yields to labour law

In 1990 the highest court in the land held, in Administrator, Transvaal, and Another v Zenzile and Others, that the principles of administrative law provide public servants with a platform to challenge a decision terminating their employment. If a dismissed public servant could show that the decision was procedurally unfair or substantively unjustified, the decision would be reversed and, as an axiomatic consequence of such a finding, the employee would be reinstated with retrospective effect (that is, with full back-pay).

Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities

This paper develops a comprehensive framework for the legal analysis of global governance phenomena. Global governance is considered as an important analytical perspective which points out new trends in relations. However, from a normative standpoint it is unsatisfactory, as it does not allow to single out those activities of institutions which compromise individual self-determination. To this end, the paper proposes the concept of international public authority, which allows identifying all hard and soft mechanisms that constitute unilateral exercises of power. For such unilateral, public power to be legitimate, it needs to correspond to yet to be defined standards of public law. After discussing current legal approaches like Global Administrative Law and constitutionalism, which all aim at the development of such standards, the paper proposes a comprehensive public law approach, which finds its basis in institutional law. This approach would avoid the uncertainties surrounding the legal bases of principles of Global Administrative Law and the risk of constitutionalism to fail on its normative ambitions. The paper sets out the framework of a comprehensive research project on the exercise of public authority by institutions.

The effect of administrative measure violating general principle of administrative law(principle of proportion etc.)

The effect of administrative measure violating general principle of administrative law(principle of proportion etc.)