Administration Scholars Research Articles

The Chinese Tradition of Administrative Law

For most of the time during the last two millennia, China was a dynastic empire ruled by an emperor with the assistance of a highly developed mandarinate of imperial organs. “Administrative law” in the modern sense of a set of legal norms enacted by the legislature or developed by the judiciary that simultaneously empower and constrain state organs and officials for the purpose of protecting the rights and liberties of subjects or citizens did not exist in traditional China. But there did exist for more than two millenniums elaborate and sophisticated rules regulating the powers and functions of each component of the highly complex and extensive machinery of imperial organs and officials, and prescribing in detail the duties of officials as well as the multiple and complicated monitoring, supervisory and disciplinary mechanisms applicable to the exercise of powers and performance of duties by officials in different state organs. By the late 19th century, Qing China’s increasing subordination to Western imperialism and semi-colonialism convinced significant numbers of Chinese political and scholarly elite that there was a desperate need for China to “save” and strengthen itself by pursuing modernization. In the legal and political domains, this generally meant extensive borrowing or transplant of Western political and legal institutions. After China's defeat by Japan in the Sino-Japanese War of 1894–1895, Japan’s experience of successful modernisation was widely admired by Chinese intellectuals, and the Japanese model was perceived as one that China should imitate in its self-strengthening efforts. This essay will therefore begin with the introduction and reception of Japanese administrative law in China in the late Qing Dynasty. It will then survey the study of comparative law and the influence of foreign law on the development of Chinese administrative law in the Republic of China era (1911–1949) and after the establishment of the People's Republic of China (1949-). Major developments in Chinese administrative law in both the Republican era and the Communist era will also be briefly outlined as the context of administrative law scholarship. It will be seen that the story of the study of comparative and foreign administrative law in modern China is very closely intertwined with the story of the development of Chinese administrative law itself.

Administrative Records after Department of Commerce v. New York

The Administrative Procedure Act of 1946 (APA) permits judicial review of agency action upon “the whole record” of the agency. What composes that term is not explicated by the text of the statute. Until recently, the Supreme Court had declined to lay down markers on the meaning of “the whole record,” leaving confusion among litigants and interdecisional inconsistency among the lower courts. In the seventy years since the APA’s enactment, courts have sewn a patchwork of jurisprudential principles elucidating what belongs in such a record, one negative effect of which was the continual relitigation of the same issues before separate judges. Our 2018 article, Administrative Records and the Courts, surveyed the law and concluded that the courts were improperly defining the administrative record and erroneously conflating records issues and merits issues. The landscape shifted in June 2019 when the Supreme Court decided Department of Commerce v. New York, which considered whether the U.S. Census Bureau lawfully added a question to the impending 2020 census that asked respondents whether they are U.S. citizens. The Court addressed the composition of “the whole record” in APA litigation for the first time in decades and held that the challengers had made a “strong showing of bad faith or improper behavior” that merited the supplementation of the record. The majority concluded that the trial court had improperly and prematurely ordered supplementation of the record, but held that the error was harmless and justified in hindsight. With the record’s contours so set, the Court then held that the Census Bureau had improperly added the citizenship question to the 2020 census. In partial concurrence and partial dissent, Justice Thomas, joined by Justice Gorsuch and Justice Kavanaugh, cited our scholarship and questioned the provenance of the “strong showing of bad faith or improper behavior” exception to the APA record rule. This essay is another entry in the sparse field of APA administrative record and judicial review scholarship. It further explicates our criticism of the bad faith exception to APA record review and explains how Department of Commerce perpetuated and invigorated this exception, which is inconsistent with the text, purpose, and history of the APA. It closes by hypothesizing the consequences of the Court’s two record rule holdings, primarily the ability of litigants to (improperly) supplement APA administrative records.

Legal Identificatino of Administrtive Procedure

Creation of the new court jurisdiction in Ukraine represented by administrative procedure gave rise to the relevant areas of scientific research, many of which are concerned with its legal identification and correlation with long-established legal categories. The analysis shows that differences in jurists’ opinions are an indication of the pressing scientific issue, addressing which will stimulate ongoing comprehension of the essential characteristics of the judicial appeal against acts and omissions by public authorities. Accordingly, the aim of this research is to carry out the legal identification of administrative procedure by showing its relation to the subject of administrative law and administrative proceeding. This has been done by examining the opinions of administrative law scholars on interpretation and correlation of such concepts as administrative procedure, subject of administrative law, administrative proceeding as well as their views on the norms of the Code of Administrative Procedure of Ukraine and provisions of other norms and regulations. It has been emphasized that renovation of the Ukrainian administrative law and formation of its modern paradigm are inextricably linked with the number of factors which include theoretical and practical findings in the sphere of administrative procedure, efficiency of the scientific support for the reforms of the administrative and legal institutions, establishing the patterns of their reformation, legal review of the actions being taken, as well as providing legal grounding for political and philosophical developments, along with generating legislative and organizational initiatives. This research also argues that administrative procedure is a fundamental component of the subject matter of administrative law and an integral part of the administrative proceeding. As a result of this, the authors conclude that administrative procedure, being of administrative and legal nature, constitutes the part of the subject matter of administrative law and administrative proceeding. It is therefore proposed that administrative proceeding be defined as an umbrella term for the regulatory activities of public administration in relation to exercising their authority.

Journal of Public Affairs Education at 25: Topics, trends, and authors

ABSTRACTUpon the occasion of the 25th anniversary of the Journal of Public Affairs Education (JPAE), this article examines its development from 1995 to 2018. Many scholars in public affairs and administration have published in its pages, and the journal offers a large variety of articles on curriculum, pedagogy, and educational philosophy. This article presents the results of a qualitative content analysis of topics, as well as a quantitative bibliometric analysis of authorship patterns. Topics such as diversity and inclusion, teaching methodology, and the nature of public affairs education play prominent roles on the journal’s pages. Collaboration among authors has become more common. Gender representation has experienced changes over time. International authors also contribute. The co-author network structure of JPAE is relatively sparse but shows potential for greater collaboration. Finally, this article identifies directions for future exploration in the journal.

An Expanding Frontier of Administrative Law: The Public Life of Private Actors (A Functional Approach)

This exploratory Article proposes to extend the reach of administrative law, in the form of public law principles, to private actors performing public services and regulatory activities without delegated executive power. These general principles seek to govern the relationship between these private actors and third parties. The administrative law-like principles to be applied by private actors vary from case to case. Some of them are transparency, impartiality, expertise, representativeness, reason giving, proportionality or antidiscrimination. In other areas, requirements of due process are imposed and arbitrary and unreasonable conduct is not permitted. To understand the reasons for the application of public law principles to those private bodies it should be borne in mind that non-state actors affect members of the public to a significant degree, and that public authorities and the private sector share responsibilities in such areas because they do not work in isolation. Ultimately, if public authorities are subject to legal principles inherent to public services and regulatory activities, it may be expected that private bodies act before third parties in a comparable, equivalent and compatible manner to that of the public authorities, in that all of them are part of a more holistic whole. This expansion of principles has two immediate consequences: (1) public law principles complement private law as long as private bodies perform these activities, and (2) a new layer of administrative law scholarship becomes functional: it is the nature of the activity being exercised and not the actor that determines for the application of these principles.

Keeping expertise in its place: understanding arm’s-length bodies as boundary organisations

Policy and administration scholars have struggled to explain the waxing and waning of arm’s-length bodies over time and across contexts. This article draws on the science and technology studies’s concept of boundary work – understood as practices which both demarcate and enable collaboration across distinct areas of expertise – to help explain variation in these institutional arrangements. Conceptualising arm’s-length bodies as boundary organisations shows how their authority rests on their capacity to enable ongoing coordination while preserving the authority and autonomy of relevant expert spheres. The article demonstrates this analytical purchase through reference to two cases in contemporary British government.

Democratic Risk Management

This Article compares and contrasts cost-benefit analysis with “collaborative analysis” in agency decision-making. While mathematical models drive cost-benefit analysis, ongoing stakeholder negotiations drive collaborative analysis. Cost-benefit analysis relies on economists inputting numerical values into a model, whereas collaborative analysis relies on the diverse perspectives of groups and individuals affected by an agency’s decision. Administrative law scholars have exhaustively researched cost-benefit analysis while overlooking widespread agency reliance on collaborative analysis. This Article advances the novel observation that legislatures and courts sometimes treat collaborative analysis and cost-benefit analysis as interchangeable. Administrative law scholars might find it unorthodox, even irresponsible, to equate the deliberative process of average citizens with numerical calculations performed by economists. Yet, collaborative analysis works well in several contexts when numerical analysis does not: where data are scarce, burdens are unevenly distributed, normative values are at stake, and conditions are changing. Under such circumstances, agency officials report that collaborative analysis creates better outcomes, secures ex ante social approval of policies, provides adaptive decision- making, and reduces conflict and litigation risk relative to alternative tools. Despite the benefits of collaborative analysis and its surprisingly widespread use, its potential remains largely untapped. In identifying and defining collaborative analysis for the first time, this Article provides agencies, stakeholders, and courts the tools necessary to understand collaborative analysis and tap into its benefits.

Police Reform Through an Administrative Lens: Revisiting the Justice Department’s Pattern or Practice Initiative

The U.S. Department of Justice’s “pattern or practice” initiative has been used to address systemic police misconduct in cities like Ferguson, Los Angeles, and Baltimore. Despite its clear relevance to administrative theory building and the practice of organizational change, the subject remains almost entirely unknown to public administration scholars. This article is designed to serve as an introduction to pattern or practice reform and a detailed agenda for future scholastic and practical contribution, with focus on three areas where administrative scholars could be of particular insight: (a) public personnel management, discretion, and accountability; (b) the influence of legal principles on the management of public bureaucracies; and (c) representative democracy and federalism. Engagement with the issue not only gives administrative scholars a voice on an increasingly salient public issue, but also would add depth and a much-needed perspective to management of such an important policy initiative.

Brief on Behalf of Administrative Law Scholars in No. 17-302

Brief on Behalf of Administrative Law Scholars in No. 17-302

Collaborative public management and systems thinking

PurposeOver the 30 years, public management and administration scholars have crossed disciplinary boundaries to build a body of scholarship on collaboration for public good, services, and values. The paper aims to discuss these issues.Design/methodology/approachPublic management and administration researchers need to integrate the scholarship on collaboration through systems thinking. How do we define collaboration? How do we distinguish among the categories of collaborative public management (CPM), collaborative governance (CG), and networks? How do systems and institutional context shape collaboration in these categories? Within these categories, what are our units of analysis: individual leadership, organizations, or groups in collaboration processes? How do we apply what we know to practice and design?FindingsThe work requires that the authors examine CPM, CG, and networks in their larger and nested institutional contexts to determine how they are related to and shape each other. The Institutional Analysis and Development framework may inform this work. CPM or networks may be nested in CG processes and structures in inter-governmental contexts.Research limitations/implicationsResearchers need more clarity as to the context within which CPM, CG, and networks occur, and in units of analysis and the roles of individual people as managers and as agents of organizations, as distinguished from organizations as constructs.Practical implicationsScholars need to apply research to practice related to designing systems and structures in which collaboration occurs.Social implicationsAs humankind faces increasingly complex and multifaceted policy problems that cross inter-governmental and international boundaries and require inter-sectoral work, managers and organizations must improve both the design of collaboration in governance and management and mastery of essential skills to participate in collaboration.Originality/valueCPM, CG, and network research does not sufficiently incorporate or control for institutional context into research design.

Privatization of childcare service in Japan: analysing gradual policy changes since the 1990s

ABSTRACTIn recent years, some public administration and management scholars have observed a shift in the trend of New Public Management (NPM) and privatization towards post-NPM, and a ‘return to the public’ in terms of public sector reforms. However, this shift does not necessarily appear in all policy fields. The aim of this article is to analyse public sector reforms and their policy processes in social service provision, focusing on child day-care centres in Japan since the 1990s. The article reveals the trajectory of policy reforms in relation to the privatization of day-care centres using a historical institutionalism approach.

Independent Budget Offices and the Politics–Administration Dichotomy

ABSTRACTThe discipline of public administration has long grappled with the issue of how much involvement by public managers is warranted in the political sphere. Legislative Budget Offices (LBOs) provide an intriguing case study in this regard. This article examines the contributions of three works that successfully encapsulate the difficulties, as well as the merits, of an institution constituted of public managers (economists) wresting political control from politicians (executives and legislators) to create value for the public. The review article thus shows why the experiences of Legislative Budget Offices can serve as informative accounts for scholars of public administration.

Central government agencies in China: toward a research agenda

Central government agencies play key roles in making and implementing public policies in China, but the empirical studies on these organisations are disproportionally scarce. Scholars in political science and public administration predominantly focus their researches on local governments at various levels, while paying little, if any, attention to the central counterparts. This article discusses the phenomenon of strong local but weak central government research pattern (the so called ‘central–local research divide’), and identifies the driving forces behind this research gap. It also introduces the lessons and implications from the US and European research projects for developing, replicating, and extending central agency databases. The research further elaborates the existing variables and data sources on central agencies and develops the China Central Agency Database (CCAD) to advance the quantitative research of central agencies in China. Finally, a conclusion is drawn with a research agenda to encourage researchers to coproduce the CCAD and embrace the study of central agencies.

The Effects of Partisan Polarization on the Bureaucracy

This essay reviews the law and political science literature addressing how polarization affects administrative agencies, and suggests opportunities for new scholarly inquiries that might help us fill in our understanding of the effects of polarization on the bureaucracy. While this scholarship has not yet generated consensus conclusions about the effects on the bureaucracy of increasingly polarized parties, we can make a couple of observations about its lessons so far. The first is that the early evidence suggests that agencies are neither as paralyzed nor as prone to ideologically extreme positions as are their political overseers, even if they sometimes have more ideological room to operate than they once did. The second observation is that polarization (particularly, congressional gridlock) nevertheless places increasing strain on agencies and courts, as the former face new problems within their jurisdiction without (or with less frequent and helpful) input from Congress, and the latter struggle to review those agency decisions. These struggles have important implications for the place of administrative agencies in the American constitutional design, implications that courts and scholars are beginning to address. The task here - tracing the effects of partisan polarization on administrative agencies - implicates age-old debates about the political control of agencies by politicians, and the extent to which agencies can (or should) evade political control. The academic literatures within which those debates are waged have long been fragmented, both substantively and methodologically. Within political science, these questions are taken up by scholars who occupy a variety of subfields, including bureaucratic politics, public administration, Congress, and the presidency. Each frames the problem from the perspective of a different institutional actor, and brings different methodological norms and preferences to the task. Among legal scholars, these questions fall mostly within administrative law scholarship, but administrative law scholars borrow selectively from social scientific analyses, all the while addressing the normative dimensions of this question more directly (and transparently) than most social scientists do. This essay explores how these frames influence the scholarship addressing the effects of polarization in a variety of ways, both analytical and normative.

Looking Differently at Legal Change: Layering, Conversion, Drift, Displacement and Exhaustion in the Development of Dutch Construction Regulation

There are various approaches to studying legal change. Systematic analysis of legal, doctrinal change as produced by courts is one of these. Whilst this approach informs us about ‘what’ has changed, it often does not inform us about ‘why’ or ‘how’ changes have come about. Yet, ‘why’ and ‘how’ questions are equally relevant to answer as ‘what’ question if we wish to fully comprehend legal change. Related areas of scholarship (political science, public administration, and socio-legal scholarship) are traditionally more interested in the why and how of legal change. This article seeks to introduce the readership of KJLL to a dominant heuristic applied to study legal change in other areas of scholarship: theorizing on incremental change. This article first briefly reviews the development of this theorizing, and then applies it to study the development of over a hundred years of construction regulation in the Netherlands. It concludes with a discussion on how this theorizing may complement more traditional, doctrinal legal scholarship approaches in providing a more comprehensive understanding of legal change.

Horizontal Transformations in Administrative Norms and Procedures: An Introduction

This introduction explores the underlying question addressed in each of the contributions to this special issue: what impact does the use of general administrative governance principles and processes by hybrid and transnational private regulatory bodies have on ‘transnational administrative law doctrine’? The importance of this inquiry arises out of the growing role that such regulatory bodies play, despite their lack of formal competence, in introducing principles and procedures of general administrative nature into their respective sector. The hypothesis is that these ‘horizontal’ – due both to the absence of formal hierarchy as well as their cross-sector applicability – administrative norms and procedures undergo transformations as the regulatory bodies formulate them for their particular fields. By pursuing this hypothesis across a number of different case studies, the contributions to this special issue develop both transnational private regulation and global administrative law scholarship by mapping normative transformations that occur in their mutual intersections.

Policy Consulting in the USA: New Evidence from the Federal Procurement Data System - Next Generation

Governmental use of consultancy services has long been a concern for scholars of public administration, management and political science. Empirical studies of policy-related consulting are scarce, however, with little quantitative data. This is true of the largest and most archetypal case of government contracting, the United States, which has received very little detailed treatment, despite a plethora of anecdotal and popular accounts claiming to have documented a pattern of exponential growth in the size and impact of policy-related government contracting. This paper reports on the distribution of the American federal government’s contracting of policy services in the context of several new initiatives on the part of the Obama administration which provide reasonably accurate data related to questions about the size, trends and other aspects of US federal government policy consulting.

Questioning the Constitutional Order: A Comparison of the French and the U.S. Politics–Administration Dichotomy Controversies After World War II

By comparing the French and the U.S. controversies on the appropriate position of public administration within the constitutional order of the state after World War II, this article aims to contribute to the historical clarification of the politics–administration dichotomy as one of the key ideas of administrative research and theory. The article underscores that the same phenomenon—the rejection of the dichotomy—has led to different conclusions among administrative scholars on both sides of the Atlantic. In the United States, the dichotomy was rejected in favor of a reinforcement of the legislature and the judiciary as well as a more representative administration to preserve the plurality of interests of American society. In contrast, the French rejection was aimed toward strengthening the executive and the administrative elite as guardians of the general interest. The article illustrates how ideas and values about public administration change according to different spatiotemporal contexts. If these contexts are disregarded, understanding remains fragmentary at best, if not misleading.

Consistency and Administrative Review

Administrative law scholars have long asked whether and how systems of review or appeal can limit the discretion of adjudicators and thereby promote consistency in adjudications. From immigration courts to patent adjudications to restaurant inspections, recent scholarship has documented dramatic inconsistency in administrative decisionmaking. The resulting calls for reform have focused especially on systems of administrative review, with advocacy for quality assurance systems and peer review as supplements to (or replacements for) traditional administrative appeals. Mostly absent from these debates, however, have been empirical studies of the effectiveness of traditional systems of administrative review. This Article proposes a theory of consistency-enhancing, discretion-limiting administrative review, along with a method of evaluating the effectiveness of systems that conduct such review. The theory implies that a traditional system of review can promote consistency at three steps. First, litigants should be more likely to appeal the decisions of judges unfriendly to their claims. Second, appeals judges should disproportionately reverse decisions from such judges. Third, those judges should seek to avoid remands and therefore alter their behavior when a decision of theirs is remanded. Effectiveness at these three steps has observable implications, and I evaluate each step using a previously unreleased database, obtained by Freedom of Information Act request, of nearly 4 million Social Security Administrative Law Judge and Appeals Council decisions from 2010 to 2014. Disparities in ALJs’ allowance rates - their relative generosity in granting benefits - are notoriously large. Using the within-hearing-office variation in these allowance rates as a measure of consistency, I find that the Social Security Appeals Council promotes cross-judge consistency at the first and third stages of appeal, but not at the second. Appeals Council decisions do not, on average, distinguish between the decisions of harsher and more generous ALJs. Interviews suggest that this lack of distinction reflects the Appeals Council’s deference to the substantive findings and conclusions of administrative law judges, combined with little deference to the ALJ’s articulated rationale for a decision. Although such an approach shows respect for the factfinder’s decisions and a commitment to procedural due process - and indeed, the Appeals Council has recently won awards for its effectiveness - such review does not address cross-ALJ consistency in outcomes. I therefore propose that the Social Security Administration broaden the mission of the Appeals Council by de-emphasizing policy compliance and granting full review more often.Stepping back, I compare these results with those of previous research on immigration courts, where the largest problems occur at the first step of review (the selection process): many immigrants are unable to afford lawyers and do not appeal, regardless of the potential merit of their case. For both processes, careful empirical attention to what happens before an appeal is filed and after a decision is reached is critical to institutional design.

Learning from Experience: Three Case Studies in International Regulatory Cooperation, A Report Prepared for the European Commission

Since at least 1990 regulators in the United States, Canada and the European Union have been exploring avenues for deeper collaboration in the fields of health, safety, environmental and financial regulation. These efforts have been driven by three main goals: to reduce regulatory costs of compliance for industry, to leverage scarce agency resources, and to steer regulatory standards in a globalizing marketplace in the right direction. Past efforts at transatlantic regulatory collaboration have yielded, at best, mixed results. But they have also generated a trove of valuable experience which can be used to inform the most recent initiative -- the Transatlantic Trade and Investment Partnership (TTIP) between the United States and the European Union -- which is currently is currently in negotiations and has made the promotion of regulatory cooperation a top priority for both sides. What can be learned from past experience to inform ongoing efforts to promote international regulatory cooperation in TTIP and beyond? In this empirical study, sponsored by the European Commission, two administrative law scholars draw on extensive primary research to craft three case studies of transnational regulatory cooperation involving the US Federal Aviation Administration (FAA), the Pipeline and Hazardous Materials Safety Administration (PHMSA), and the Food and Drug Administration (FDA, working with their foreign counterparts to address shared safety risks. The closely-analyzed experience of these three agencies' efforts yields a rich array of insights that should interest both scholars of administrative law and trade negotiators/regulators charged with strengthening international regulatory cooperation in these and other regulatory regimes.