Katarina Staronova & Erik Láštic, Into the Labyrinth:
The Rewards for High Public Office in Slovakia (May 2013) [SSRN]
Joel Rheuben, Enhancing the Right to Know in Japan:
Translation of and Commentary on Proposed Amendments to the Information Disclosure
Law (January 2013) [SSRN]
David J. Barron, Todd D. Rakoff, In Defense of Big Waiver,
113 Colum. L. Rev. 265 (2013) [Westlaw]
Arthur H. Garrison, The Opinions by the Attorney General and
the Office of Legal Counsel: How and Why They Are Significant, 76 Alb. L. Rev.
217 (2013) [Westlaw]
William N. Eskridge, Jr., Reading Law: The Interpretation of
Legal Texts. by Antonin Scalia and Bryan A. Garner. St. Paul: West, 2012. Pp.
567,113 Colum. L. Rev. 531 (2013) [Westlaw]
George K. Yin, The Role of Nonpartisan Staff in the
Legislative Process (May 2013) [SSRN]
Graham Greenleaf, Singapore's New Data Protection Authority:
Strong Enforcement Powers and Business Risks (April 2013) [SSRN]
Modes of Governance and Regulation
Christopher Jon Arup, A Future for Regulation and
Governance: Some Reflections @10 (May 2013) [SSRN]
Hannah Jacobs Wiseman, Remedying Regulatory Diseconomies of
Scale (April 2013) [SSRN]
Muiris MacCarthaigh, Reform of Public Policy-Making in
Ireland (March 2013) [SSRN]
Willy McCourt, Models of Public Service Reform: A Problem-Solving
Approach (April 2013) [SSRN]
The Public/Private Divide
Nina A. Mendelson, Private Control Over Access to Public
Law: The Puzzling Federal Regulatory Use of Private Standards (May 2013) [SSRN]
Tanja Klenk & Jonas Pieper, Accountability in a
Privatized Welfare State: The Case of the German Hospital Market, 45
Administration & Society 326 (2013) [SAGE journals]
Jonathan R. Macey, The Regulator Effect in Financial
Regulation, 98 Cornell L. Rev. 591 (2013) [Westlaw]
Accountability & Decision-making Processes
Bennis Wai Yip Soa, Civic Engagement in the Performance
Evaluation of the Public Sector in China, in: Public Management Review (April
2013) [Taylor & Francis Online]
Nicholas Bagley, Bedside Bureaucrats: Why Medicare Reform
Hasn't Worked, 101 Geo. L.J. 519 (2013) [Westlaw]
Laverne Jacobs, Evaluating Ombuds Oversight in the Canadian
Access to Information Context: A Theoretical and Empirical Inquiry (March 2013)
Gary Lawson & Stephen Kam, Making Law Out of Nothing at
All: The Origins of the Chevron Doctrine, 65 Admin. L. Rev. 1 (2013) [Westlaw]
Ji Li, Dare You Sue the Tax Collector! An Empirical Study of
Administrative Lawsuits Against Tax Agencies in China (April 2013) [SSRN]
Diana R. H. Winters, False Certainty: Judicial Forcing of
the Quantification of Risk, 85 Temp. L. Rev. 315 (2013) [Westlaw]
Bradley G. Hubbard, Deference to Agency Statutory
Interpretations First Advanced in Litigation? The Chevron Two-Step and the
Skidmore Shuffle [SSRN]
R. Craig Kitchen, Negative Lawmaking Delegations:
Constitutional Structure and Delegations to the Executive of Discretionary
Authority to Amend, Waive, and Cancel Statutory Text, 40 Hastings Const. L.Q.
525 (2013) [Westlaw]
Stavros Gadinis, From Independence to Politics in Financial
Regulation, 101 Cal. L. Rev. 327 (2013) [Westlaw]
Modes of Governance and Regulation
Keith Werhan, Regulatory Federalism, Shaken Not Stirred
(April 2013) [SSRN]
Leigh Osofsky, Some Realism About Responsive Tax
Administration, 66 Tax L. Rev. 121 (2012) [Westlaw]
The Public/Private Divide
Sander Lenferink, Taede Tillema & Jos Arts, Public-Private
Interaction in Contracting: Governance Strategies in the Competitive Dialogue
of Dutch Infrastructure Projects, in: Public Administration (April 2013)
Alberto Asquer, Explaining the Partial Privatization of
Public Service Provision: The Emergence of Mixed Ownership Water Firms in Italy
(1994-2009) (March 2013) [SSRN]
Robert C. Hockett & Saule T. Omarova, 'Private' Means to
'Public' Ends: Governments as Market Actors (February 2013) [SSRN]
Environmental Law & Regulation
David N. Cassuto & Romulo S. R. Sampaio Sr., The
Importance of Information and Participation Principles in Environmental Law in
Brazil, the United States and Beyond (April 2013) [SSRN]
EU Administrative Law and Governance
Kenneth Armstrong, New Governance and the European Union: An
Empirical and Conceptual Critique (April 2013) [SSRN]
Francois Lafarge, The Legal Basis and the Legal Constraints
of EU Agencies (January 2013) [SSRN]
Global Regulation/ Global Governance
Grainne De Burca, Robert O. Keohane & Charles F. Sabel,
New Modes of Pluralist Global Governance (February 2013) [SSRN]
Accountability & Decision-making Processes
Daniel E. Walters, Litigation-Fostered Bureaucratic
Autonomy: Administrative Law Against Political Control (March 2013) [SSRN]
Thomas Owen McGarity & Sidney A. Shapiro, Regulatory
Science in Rulemaking and Tort: Unifying the Weight of the Evidence Approach
(February 2013) [SSRN]
Michael D. Frakes & Melissa F. Wasserman, Does Agency
Funding Affect Decisionmaking?: An Empirical Assessment of the PTO's Granting
Patterns, 66 Vand. L. Rev. 67 (2013) [Westlaw]
Richard Murphy, Chenery Unmasked: Reasonable Limits on the
Duty to Give Reasons, 80 U. Cin. L. Rev. 817 (2012) [Westlaw]
Comparative Administrative Law
Janina Boughey, Administrative Law: The next frontier for
comparative law, 62 Int'l & Comp. L.Q. 55 (2013) [Cambridge Journals]
Josh Bendor & Miles Farmer, Curing the Blind Spot in
Administrative Law: A Federal Common Law Framework for State Agencies
Implementing Cooperative Federalism Statutes, 122 Yale L.J. 1280 (2013)
Michael Kagan, Dubious Deference: Reassessing Appellate
Standards of Review in Immigration Appeals, 5 Drexel L. Rev. 101 (2012)
Eric M. Fraser, David K. Kessler, Matthew J. B. Lawrence
& Stephen Calhoun, The Jurisdiction of the D.C. Circuit (March 2013) [SSRN]
Christopher J. Walker, Administrative Common Law Toolbox for
Enhancing Court-Agency Dialogue (March 2013) [SSRN]
Anita S. Krishnakumar, Longstanding Agency Interpretations
(February 2013) [SSRN]
David Pozen, The Leaky Leviathan: Why the Government
Condemns and Condones Unlawful Disclosures of Information (March 2013) [SSRN]
Kent H. Barnett, Structural Improvements to Formal Executive
Adjudication (March 2013) [SSRN]
Jason Marisam, The President's Agency Selection Powers
(March 2013) [SSRN]
Adrian Vermeule, Recess Appointments and Precautionary
Constitutionalism (March 2013) [SSRN]
Abbe R. Gluck & Lisa Schultz Bressman, Statutory
Interpretation from the Inside -- An Empirical Study of Congressional Drafting,
Delegation and the Canons: Part I (April 2013) [SSRN]
Jeffrey A. Pojanowski, Statutes in Common Law Courts, 91
Tex. L. Rev. 479 (2013) [Westlaw]
Rob Van Gestel, The 'Deparliamentarisation' of Legislation:
Framework Laws and the Primacy of the Legislature (March 2013) [SSRN]
Jed Handelsman Shugerman, The Creation of the Department of
Justice: Professionalization Without Civil Rights or Civil Service (March 2013)
Modes of Governance and Regulation
Adrian Vermeule, Rationally Arbitrary Decisions (in
Administrative Law) (March 2013) [SSRN]
Maurits Barendrecht, David Raic, Ronald Janse & Sam
Muller, Rulejungling: When Lawmaking Goes Private, International and Informal
(March 2013) [SSRN]
S.I. Strong, Regulatory Litigation in the European Union:
Does the U.S. Class Action Have A New Analogue?, 88 Notre Dame L. Rev. 899
Alejandro E. Camacho & Robert L. Glicksman, Functional
Government in 3-D (March 2013) [SSRN]
Paul Dragos Aligica, Public Administration, Public Choice
and the Ostroms: The Achievement, the Failure, the Promise (March 2013) [SSRN]
Environmental Law & Regulation
William L. Andreen, Success and Backlash: The Remarkable
(Continuing) Story of the Clean Water Act (March 2013) [SSRN]
Paul Rose & Christopher J. Walker, The Importance of
Cost-Benefit Analysis in Financial Regulation (March 2013) [SSRN]
Global Regulation/ Global Governance
Donald Earl Childress III, Does International Investment Law
Need Administrative Law? (February 2013) [SSRN]
Accountability & Decision-making Processes
Christopher R. Yukins & Jose A. Cora, Feature Comment:
Considering the Effects of Public Procurement Regulations on Competitive
Markets (March 2013) [SSRN]
Robin Kundis Craig & J. B. Ruhl, Designing
Administrative Law for Adaptive Management (February 2013) [SSRN]
Jonathan H. Adler, City of Arlington v. FCC: Questioning
Agency Authority to Determine the Scope of Its Own Authority (February 2013)
William R. Casto, Advising Presidents: Robert H. Jackson and
the Problem of Dirty Hands (February 2013) [SSRN]
Daniel A. Crane, Enacted Legislative Findings and the
Deference Problem (February 2013) [SSRN]
Modes of Governance and Regulation
David Levi-Faur, The Odyssey of the Regulatory State: From a
'Thin' Monomorphic Concept to a 'Thick' and Polymorphic Concept (March 2013)
Cass R. Sunstein, Nudges.gov: Behavioral Economics and
Regulation (February 2013) [SSRN]
Barak Orbach, What is Government Failure? (February 2013)
Maria Barroso Gomes, Administrative Adjudication in
Antitrust: Still a Controversy? An Annotated Bibliography (February 2013)
Rafael I. Pardo & Kathryn A. Watts, The Structural
Exceptionalism of Bankruptcy Administration, 60 UCLA L. Rev. 384 (2012)
Lene Holm Pedersen, Committed to the Public Interest?
Motivation and Behavioural Outcomes Among Local Councillors, in: Public
Administration (March 2013) [Wiley]
Moshe Maor, Theories of Bureaucratic Reputation (January
Francis Fukuyama, What is Governance? (January 2013) [SSRN]
The Public/Private Divide
Judith Resnik, Globalization(s), Privatization(s),
Constitutionalization, and Statization: Icons an Experiences of Sovereignty in
the 21st Century (February 2013) [SSRN]
Jeroen Van der Heijden, Privatization of Building Code
Enforcement: A Comparative Study of Regimes in Australia and Canada (January 2013)
Manuel J. De Vera, Philamer C. Torio, Michael O. Timbang &
Charles Siriban, Asian Public-Private Partnerships: An Overview of Trends and
Innovations (January 2013) [SSRN]
Matthew Titolo, Leasing Sovereignty: On State Infrastructure
Contracts, 47 U. Rich. L. Rev. 631 (2013) [Westlaw]
Zoe Radnor & Stephen P. Osborne, Lean: A failed theory
for public services?, 15 Public Management Review 265 (2013) [Taylor &
Environmental Law & Regulation
Alexandra B. Klass, Climate Change and the Convergence of
Environmental and Energy Law (February 2013) [SSRN]
Accountability & Decision-making Processes
Susan Rose-Ackerman & Thomas Perroud, Policymaking and
Public Law in France: Public Participation, Agency Independence, and Impact
Assessment (February 2013) [SSRN]
Aziz Z. Huq, Removal As A Political Question, 65 Stan. L.
Rev. 1 (2013) [Westlaw]
Cary Coglianese, Enhancing Public Access to Online
Rulemaking Information (February 2013) [SSRN]
Michael D. Sant'Ambrogio & Adam S. Zimmerman, The Agency
Class Action, 112 Colum. L. Rev. 1992 (2012) [Westlaw]
Barry Sullivan, FOIA and the First Amendment: Representative
Democracy and the People's Elusive "Right to Know", 72 Md. L. Rev. 1
Mireille Van Eechoud & Katleen Janssen, Rights of Access
to Public Sector Information (November 2012) [SSRN]
Kenneth A. Bamberger & Deirdre K. Mulligan, PIA
Requirements and Privacy Decision-Making in US Government Agencies (2012)
Eric Berger, Deference Determinations and Stealth
Constitutional Decision Making, 98 Iowa L. Rev. 465 (2013) [Westlaw]
Rob Robinson, Executive Branch Socialization and Deference
on the U.S. Supreme Court, 46 Law & Soc'y Rev. 889 (2012) [Westlaw]
Abbe R. Gluck, The Federal Common Law of Statutory
Interpretation: Erie for the Age of Statutes, 54 Wm. & Mary L. Rev. 753
Modes of Governance and Regulation
Lisa Heinzerling, Undue Process at the FDA (January 2013)
Jacob E. Gersen & Adrian Vermeule, Delegating to
Enemies, 112 Colum. L. Rev. 2193 (2012) [Westlaw]
Lance Gable, Evading Emergency: Strengthening Emergency
Responses Through Integrated Pluralistic Governance, 91 Or. L. Rev. 375 (2012)
John Bronsteen, Christopher J. Buccafusco & Jonathan S.
Masur, Well-Being Analysis vs. Cost-Benefit Analysis (2012) [SSRN]
Kristian Krieger, The limits and variety of risk-based
governance: The case of flood management in Germany and England, in: Regulation
& Governance (December 2012) [Wiley]
Eric Windholz & Graeme Hodge, Conceptualising Social and
Economic Regulation: Implications for Modern Regulators and Regulatory Activity
Mehmet Ugur, Governance, Regulation and Innovation:
Introducing New Studies (December 2012) [SSRN]
Koen P.R. Bartels, Public Encounters: The History and Future
of Face-to-Face Contact Between Public Professionals and Citizens, in: Public
Administration (Feb. 2013) [Wiley]
Lars G. Tummers, Sebastian Jilke & Steven Van de Walle, Citizens
in Charge? Reviewing the Background and Value of Introducing Choice and
Competition in Public Services (February 2013) [SSRN]
Thomas Perroud, Local Governments and the Provision of
Public Service in France and the United Kingdom (February 2013) [SSRN]
Joan Font & Clemente Navarro, Personal Experience and
the Evaluation of Participatory Instruments in Spanish Cities, in: Public
Administration (Feb. 2013) [Wiley]
Eungkyoon Lee, Raul P. Lejano & Robert J. Connelly, Regulation-by-information
in areas of limited statehood: Lessons from the Philippines' environmental
regulation, in: Regulation & Governance (January 2013) [Wiley]
The Public/Private Divide
Peter L. Strauss, Private Standards Organizations and Public
Law (December 2012) [SSRN]
Environmental Law & Regulation
Daniel A. Farber, Climate Policy in a System of Divided
Powers: Dealing with Carbon Leakage and Regulatory Linkage (January 2013)
Michael Burger, Fracking and Federalism Choice: In Response
to David B. Spence, Federalism, Regulatory Lags, and the Political Economy of
Energy Production (December 2012) [SSRN]
Kevin L. Young & Sung Ho Park, Regulatory Opportunism:
Cross-National Patterns in National Banking Regulatory Responses Following the
Global Financial Crisis, in: Public Administration (Feb. 2013) [Wiley]
Brett McDonnell, Dampening Financial Regulatory Cycles
(February 2013) [SSRN]
Daniel Gluch, Lucia Skovranova & Mikael Stenstrom,
Central Bank Involvement in Macro-Prudential Oversight (December 2012) [SSRN]
Global Regulation/ Global Governance
Stavros Gadinis, The Financial Stability Board: The New
Politics of International Financial Regulation (February 2013) [SSRN]
Accountability & Decision-making Processes
Nina A. Mendelson, Should Mass Comments Count? (February 2013) [SSRN]
Kenneth J. Arrow et al., How Should Benefits and Costs Be Discounted in an Intergenerational Context? The Views of an Expert Panel (January 2013) [SSRN]
Yoon-Ho Alex Lee, An Options-Approach to Agency Rulemaking (January 2013) [SSRN]
Daniel R. Wilson, Administrative Procedure and Foreign Antibribery Enforcement: "Restoring Balance" Through Procedural Transparency, 36 Hastings Int'l & Comp. L. Rev. 289 (2013) [Westlaw]
Jillian Raines, Note. The Digital Accountability and Transparency Act of 2011 (Data): Using Open Data Principles to Revamp Spending Transparency Legislation, 57 N.Y.L. Sch. L. Rev. 313 (2013) [Westlaw]
Mark Seidenfeld, The Irrelevance of Politics for Arbitrary and Capricious Review, 90 Wash. U.L. Rev. 141 (2012) [Westlaw]
Jennifer Nou, Agency Self-Insulation Under Presidential Review (January 2013) [SSRN]
Arpit K. Garg, A Deference Theory of Section 5 of the Voting Rights Act [SSRN]
Parker Rider-Longmaid, Take Care That the Laws Be Faithfully Litigated, 161 U. Pa. L. Rev. 291 (2012) [Westlaw]
Edward J. Larson, The Constitutionality of Lame-Duck Lawmaking: The Text, History, Intent, and Original Meaning of the Twentieth Amendment, 2012 Utah L. Rev. 707 (2012) [Westlaw]
Aaron-Andrew P. Bruhl & Ethan J. Leib, Elected Judges and Statutory Interpretation, 79 U. Chi. L. Rev. 1215 (2012) [Westlaw]
Modes of Governance and Regulation
Nicolas Petit, New Challenges for 21st Century Competition Authorities (January 2013) [SSRN]
John O. McGinnis, Accelerating Democracy: Transforming Government through Technology (January 2013) [SSRN]
Jeroen Van der Heijden, Looking Forward and Sideways: Trajectories of New Governance Theory (January 2013) [SSRN]
Maarten Keune & Colin Crouch, The Governance of Economic Uncertainty: Beyond the ‘New Social Risks' Analysis (February 2013) [SSRN]
Jette Steen Knudsen & Dana Brown, Why Governments Intervene: Mixed Motives for Public Policies on CSR (December 2012) [SSRN]
Benedict S. Jimenez, Management Quality and State Bond Ratings: Exploring the Links between Public Management and Fiscal Outcomes (January 2013) [SSRN]
Liliana Nikolaevna Proskuryakova, Gulnara Abdrakhmanova & Hans Pitlik, Public Sector E-Innovations: E-Government and Its Impact on Corruption (January 2013) [SSRN]
The Public/Private Divide
Lauren Groth, Transforming Accountability: A Proposal for Reconsidering How Human Rights Obligations Are Applied to Private Military Security Firms, 35 Hastings Int'l & Comp. L. Rev. 29 (2012) [Westlaw]
Kristine A. Huskey, Accountability for Private Military and Security Contractors in the International Legal Regime (December 2012) [SSRN]
Oliver Von Hagen & Gabriela Alvarez, The Interplay of Public and Private Standards: Literature Review Series on the Impacts of Private Standards, Part III (January 2013) [SSRN]
Environmental Law & Regulation
John Copeland Nagle, The Clean Air Act and Scenic Landscapes (February 2013) [SSRN]
Gerald Korngold, Governmental Conservation Easements: A Means to Advance Efficiency, Freedom from Coercion, Flexibility, and Democracy (2012) [SSRN]
James R. Barth, Gerard Caprio Jr. & Ross Levine, Bank Regulation and Supervision in 180 Countries from 1999 to 2011 (January 2013) [SSRN]
Edward Greene & Elizabeth L. Broomfield, Promoting Risk Mitigation, Not Migration: A Comparative Analysis of Shadow Banking Reforms by the FSB, USA and EU (January 2013) [SSRN]
Global Regulation/ Global Governance
Ming-Sung Kuo, On the Constitutional Question in Global Governance: Global Administrative Law and the Conflicts-Law Approach in Comparison (February 2013) [SSRN]
Adi Ayal, Ronen Hareuveny & Oren Perez, Science, Politics and Transnational Regulation: Regulatory Scientific Institutions and the Dilemmas of Hybrid Authority (January 2013) [SSRN]
The European Ombudsman and the European Parliament have been
pushing for some time now for the drafting of a European code of administrative
procedure. The project is under way and the European Parliament has adopted a
Resolution with recommendations to the Commission on a Law of Administrative
Procedure of the European Union (available here).
The resolution is very general. The project would take the
form of a regulation and should aim at guaranteeing the right to good
administration by means of an open, efficient and independent administration
based on a European Law of Administrative Procedure. The scope of the Code is
clearer. It is limited to direct administration and to the relations with the
public: it should apply to the Union's institutions, bodies, offices and
agencies (‘the Union's administration') in their relations with the public.
An impact assessment was also made. It is to be found here.
Accountability & Decision-making Processes
Ryan Bubb & Patrick L. Warren, Optimal Agency Bias and
Regulatory Review (January 2013) [SSRN]
Bruce M. Owen, Decorrupting Government -- The United States
Board of Overseers (January 2013) [SSRN]
Daniel P. Tokaji, America's Top Model: The Wisconsin
Government Accountability Board (January 2013) [SSRN]
Rebecca Hamlin, International Law and Administrative
Insulation: A Comparison of Refugee Status Determination Regimes in the United
States, Canada, and Australia, 37 Law & Soc. Inquiry 933 (2012) [Wiley]
John Bell, Mark Elliott, David Feldman, Christopher F.
Forsyth & Jason N. E. Varuhas, Response to Ministry of Justice Consultation
Paper 'Judicial Review: Proposals for Reform' (January 2013) [SSRN]
Michael Ray Harris, Intervention of Right in Judicial
Proceedings to Review Informal Federal Rulemakings, 40 Hofstra L. Rev. 879
Rebecca Ingber, Interpretation Catalysts and Executive
Branch Legal Decisionmaking (January 2013) [SSRN]
Curtis A. Bradley & Trevor W. Morrison, Historical Gloss
and the Separation of Powers, 126 Harv. L. Rev. 411 (2012) [Westlaw]
Robert Bejesky, War Powers Pursuant to False Perceptions and
Asymmetric Information in the "Zone of Twilight", 44 St. Mary's L.J.
1 (2012) [Westlaw]
Vanessa MacDonnell, The Constitution as Framework for
Governance (January 2013) [SSRN]
Michael D. Sant'Ambrogio, The Extra-Legislative Veto
(January 2013) [SSRN]
Joseph Landau, DOMA and Presidential Discretion:
Interpreting and Enforcing Federal Law, 81 Fordham L. Rev. 619 (2012) [Westlaw]
Rajiv Mohan, Chevron and the President's Role in the
Legislative Process, 64 Admin. L. Rev. 793 (2012) [Westlaw]
David Orentlicher, NFIB V. Sibelius: Proportionality in the
Exercise of Congressional Power (November 2012) [SSRN]
Modes of Governance and Regulation
Joshua D. Wright & Angela Diveley, Do Expert Agencies
Outperform Generalist Judges? Some Preliminary Evidence from the Federal Trade
Commission (December 2012) [SSRN]
Jonathan S. Masur & Eric A. Posner, Unemployment and
Regulatory Policy (December 2012) [SSRN]
Jeroen Van der Heijden, International Comparative Analysis
of Building Regulations: An Analytical Tool (January 2013) [SSRN]
William Boyd, Genealogies of Risk: Searching for Safety,
1930s-1970s (January 2013) [SSRN]
Johann Morri, Interpretive and Legislative Norms in France
and in the USA (September 2012) [SSRN]
Philippe Bezes & Salvador Parrado, Trajectories of
Administrative Reform: Institutions, Timing and Choices in France and Spain, 36
West European Politics 22 (2013) [Taylor & Francis Online]
Jesse D. Lecy , Ines A. Mergel & Hans Peter Schmitz,
Networks in Public Administration, in: Public Management Review (January 2013)
[Taylor & Francis Online]
Xun Wu, Yan-ling He & Milan Tung-Wen Sun, Public
Administration Research in Mainland China and Taiwan: An Assessment of Journal
Publications, 1998-2008, in: Public Administration (Jan. 2013) [Wiley]
Bernardo Giorgio Mattarella, Interest Representation and
Public Administration (2012) [SSRN]
Marc T. Law & Cheryl X. Long, What do Revolving-Door
Laws Do? 55 J.L. & Econ. 421 (2012) [Westlaw]
Environmental Law & Regulation
Dino Falaschetti, Global Environmental Governance: Mechanism
Design Lessons from Corporate Governance (January 2013) [SSRN]
Martin Cihák, Asli Demirgüç-Kunt & R. Barry Johnston,
Incentive Audits: A New Approach to Financial Regulation (January 2013) [SSRN]
John Crawford, Predicting Failure (January 2013) [SSRN]
Fernando Zunzunegui, Financial Regulation in a Global
Economy (January 2013) [SSRN]
Zoltan Sarkany, International Financial Supervisory
Convergence: How Much Should there Be? How Best to Assess the Appropriate Level
of Cross Border Supervision and Enforcement? (November 2012) [SSRN]
EU Administrative Law
Rob van Gestel, Hans-W. Micklitz, European Integration
Through Standardization: How Judicial Review is Breaking Down the Club House of
Private Standardization Bodies, 50 Common Market Law Review 145 (2013) [Kluwer]
Bernardo Giorgio Mattarella, The Concrete Options for a Law
on Administrative Procedure Bearing on Direct EU Administration (2012) [SSRN]
Alexander H. Türk, Oversight of Administrative Rulemaking:
Judicial Review, 19 European Law Journal 126 (2013) [Wiley]
Linda D. Jellum, The Impact of the Rise and Fall of Chevron
on the Executive's Power to Make and Interpret Law, 44 Loy. U. Chi. L.J. 141
Mark Elliott, Judicial Review - Why the Ministry of Justice
Doesn't Get it (December 2012) [SSRN]
Kristen Eichensehr, Treaty Termination and the Separation of
Powers (January 2013) [SSRN]
Mariano-Florentino Cuéllar, American Executive Power in
Historical Perspective (December 2012) [SSRN]
Curtis A. Bradley & Trevor W. Morrison, Presidential
Power, Historical Practice, and Legal Constraint (December 2012) [SSRN]
Cass R. Sunstein, The Office of Information and Regulatory
Affairs: Myths and Realities (December 2012) [SSRN]
Joseph Landau, Chevron Meets Youngstown: National Security
and the Administrative State, 92 B.U. L. Rev. 1917 (2012) [Westlaw]
Josh Chafetz, The Phenomenology of Gridlock (January 2013)
Wim J. M. Voermans & Hans-Martien Ten Napel, Legislative
Processes in Transition: Comparative Study of the Legislative Processes in EU
Countries (December 2012) [SSRN]
Adam J. Levitin, The Consumer Financial Protection Bureau:
An Introduction (January 2013) [SSRN]
Bernardo Giorgio Mattarella, Administrative Law in Italy: An
Historical Sketch [SSRN]
Modes of Governance and Regulation
Cass R. Sunstein, The Real World of Cost-Benefit Analysis:
Thirty-Six Questions (and Almost as Many Answers) (January 2013) [SSRN]
Joseph W. Yockey, Choosing Governance in the FCPA Reform
Debate (January 2013) [SSRN]
Melissa J. Luttrell, Bentham at the OMB: A Response to
Professor Rowell, 64 Admin. L. Rev. 1013 (2012) [Westlaw]
Stephen R. Munzer, How to Integrate Administrative Law and
Tort Law: The Regulation of Stem Cell Products, 64 Admin. L. Rev. 743 (2012)
Thomas Owen McGarity & Rena I. Steinzor, The End Game of
Deregulation: Myopic Risk Management and the Next Catastrophe (2012) [SSRN]
Yuri Biondi, The HM 'Treasure's Island': A Theoretical
Analysis of Central Government Accounting Standards in UK (January 2013) [SSRN]
Noah Buckley, Guzel Garifullina & Ora John Reuter, Bureaucratic
Appointments in Hybrid Regimes (January 2013) [SSRN]
Jean-Noël Grenier, Patrice Jalette & Jérémie
Hains-Pouliot, Restructuring of the Quebec Public Service: Disparate
Configurations and Consequences (December 2012) [SSRN]
Lars G. Tummers, Policy Alienation: Analyzing the
Experiences of Public Professionals with New Policies (2012) [SSRN]
The Public/Private Divide
Larry Catá Backer, Privatization, the Role of Enterprises
and the Implementation of Social and Economic Rights: A Comparison of
Rights-Based and Administrative Approaches in India and China (January 2013)
Agnieszka Janczuk, Public-Private Hybrid Governance for
Electronic Payments in the European Union (December 2012) [SSRN]
Cormac S. Mac Amhlaigh, Defending the Domain of Public Law
(against Three Critiques of the Public/Private Divide) (December 2012) [SSRN]
Environmental Law & Regulation
Joel A. Mintz, Sackett v. EPA and Judicial Interpretations
of Environmental Statutes: What Role for NEPA? (2012) [SSRN]
Gabriel Eckstein, Comment: Emerging EPA Regulation of
Pharmaceuticals in the Environment (December 2012) [SSRN]
Eric Posner & E. Glen Weyl, Benefit-Cost Analysis for
Financial Regulation (January 2013) [SSRN]
Andrew John Bailey, Sarah Breeden & Gregory Stevens, The
Prudential Regulation Authority (December 2012) [SSRN]
Christopher P. Buttigieg, Policy Trends in EU Financial
Regulation Post the Financial Crisis: Challenges for Investment Funds in Europe
(December 2012) [SSRN]
Mary Donnelly, The Financial Services Ombudsman: Asking the
'Existential Question' (September 2012) [SSRN]
EU Administrative Law
Deirdre Curtin, Herwig Hofmann & Joana Mendes,
Constitutionalising EU Executive Rule-Making Procedures: A Research Agenda, 19
European Law Journal 1 (2013) [Wiley]
Joana Mendes, Delegated and Implementing Rule Making:
Proceduralisation and Constitutional Design, 19 European Law Journal 22 (2013)
Thomas Christiansen & Mathias Dobbels, Non-Legislative
Rule Making after the Lisbon Treaty: Implementing the New System of Comitology
and Delegated Acts, 19 European Law Journal 42 (2013) [Wiley]
Linda Senden, Soft Post-Legislative Rulemaking: A Time for
More Stringent Control, 19 European Law Journal 57 (2013) [Wiley]
Edoardo Chiti, European Agencies' Rulemaking: Powers, Procedures
and Assessment, 19 European Law Journal 93 (2013) [Wiley]
Madalina Busuioc, Rule-Making by the European Financial
Supervisory Authorities: Walking a Tight Rope, 19 European Law Journal 111
Pieter Van Cleynenbreugel, Judicial Protection Against EU
Financial Supervisory Authorities in the Wake of Regulatory Reform (October
Global Regulation/ Global Governance
Olivier De Wulf, A Critical Examination of the International
Regulation of Offshore Financial Centres (December 2012) [SSRN]
Alberto Alemanno, Is There a Role for Cost-Benefit Analysis
Beyond the Nation-State?: Lessons from International Regulatory Co-Operation
(December 2012) [SSRN]
Marc Hertogh, Why the Ombudsman Does Not
Promote Public Trust in Government: Lessons from the Low Countries (November
Wendy Wagner, Revisiting the Impact of
Judicial Review on Agency Rulemakings: An Empirical Investigation, 53 Wm. &
Mary L. Rev. 1717 (2012) [Hein]
Neil H. Buchanan & Michael C. Dorf, How
to Choose the Least Unconstitutional Option: Lessons for the President (and
Others) from the Debt Ceiling Standoff, 112 Colum. L. Rev. 1175 (2012)
William Roberts Clark & Vincent
Arel-Bundock, Independent but Not Indifferent: Partisan Bias in Monetary Policy
at the Fed (October 2012) [SSRN]
Modes of Governance and Regulation
Cass R. Sunstein, The Storrs Lectures:
Behavioral Economics and Paternalism (November 2012) [SSRN]
Christopher Carrigan & Cary Coglianese,
Oversight in Hindsight: Assessing the U.S. Regulatory System in the Wake of
Calamity (December 2012) [SSRN]
The Public/Private Divide
Cormac S. Mac Amhlaigh, Defending the
Domain of Public Law (against Three Critiques of the Public/Private Divide)
(December 2012) [SSRN]
Peer Zumbansen, Transnational Private
Regulatory Governance: Ambiguities of Public Authority and Private Power
(December 2012) [SSRN]
Environmental Law & Regulation
Lesley K. McAllister, Co-regulation in
Mexican Environmental Law, 32 Utah Envtl. L. Rev. 181 (2012) [Westlaw]
Albert Lin, Power to the People: Restoring
the Public Voice in Environmental Law (December 2012) [SSRN]
Andrea Gattini, Between Splendid Isolation
and Tentative Imperialism: The EU's Extension of its Emission Trading Scheme to
International Aviation and the ECJ's Judgment in the ATA Case, 61 Int'l &
Comp. L.Q. 977 (2012) [Cambridge Journals]
Steven L. Schwarcz, Shadow Banking and
Financial Regulation (December 2012) [SSRN]
Dee Pridgen, Sea Changes in Consumer
Financial Protection: Stronger Agency and Stronger Laws (December 2012) [SSRN]
Christian A. Johnson, Regulatory Arbitrage,
Extraterritorial Jurisdiction and Dodd-Frank: The Implications of US Global OTC
Derivative Regulation (October 2012) [SSRN]
EU Administrative Law
Deirdre Curtin, Judging EU Secrecy
(December 2012) [SSRN]
Alberto Alemanno & Anne Meuwese, Impact
Assessment of EU Non-Legislative Rulemaking: The Missing Link of 'New'
Comitology (November 2012) [SSRN]
Anne Meuwese, Standing Rights and
Regulatory Dynamics in the EU (October 2012) [SSRN]
Global Regulation/ Global Governance
Elaine Fahey & Ester Herlin-Karnell, EU
Law QUA Global Governance Law? Deciphering Regulatory and Constitutional
Competence between EU Environmental Law and Global Governance Special Issue
Editorial (October 2012) [SSRN]
Dorit Rubinstein Reiss, The Benefits of Capture, 47 Wake
Forest L. Rev. 569 (2012) [Westlaw]
David Arkush, Democracy and Administrative Legitimacy, 47
Wake Forest L. Rev. 611 (2012) [Westlaw]
Richard Murphy, Enhancing the Role of Public Interest
Organizations in Rulemaking Via Pre-Notice Transparency, 47 Wake Forest L. Rev.
681 (2012) [Westlaw]
Mark Halle, Robert Wolfe & Anna Drake, Locating
Accountability: Conceptual and Categorical Challenges in the Literature
(November 2012) [SSRN]
William H. Simon, Democracy and Organization: The Further
Reformation of American Administrative Law (November 2012) [SSRN]
Agustí Cerrillo-i-Martínez, The Reuse of Public Sector
Information in Europe and its Impact on Transparency, 18 European Law Journal 770
William E. Kovacic & David A. Hyman, Competition Agency
Design: What's on the Menu? (November 2012) [SSRN]
Jonathan B. Wiener, The Diffusion of Regulatory Oversight
(September 2012) [SSRN]
Daniel H. Cole, Law, Politics, and Cost-Benefit Analysis, 64
Ala. L. Rev. 55 (2012) [Westlaw]
Ittai Bar-Siman-Tov, Semiprocedural Judicial Review
(December 2012) [SSRN]
Paul Daly, Defining Deference (November 2012) [SSRN]
Cora Chan, Proportionality and Invariable Baseline Intensity
of Review (November 2012) [SSRN]
Dru Stevenson & Sonny Eckhart, Standing As Channeling in
the Administrative Age, 53 B.C. L. Rev. 1357 (2012) [Westlaw]
Helen V. Milner & Dustin H. Tingley, Presidential
Influence Versus Congressional Control in Action (December 2012) [SSRN]
Peter Gerangelos, The Executive Power of the Commonwealth of
Australia: Section 61 of the Commonwealth Constitution, ‘Nationhood' and the
Future of the Prerogative (November 2012) [SSRN]
David Fontana, Executive Branch Legalisms (November 2012)
Eric A. Posner, Balance-of-Powers Arguments and the
Structural Constitution (November 2012) [SSRN]
Edward Rubin, Hyperdepoliticization, 47 Wake Forest L. Rev.
631 (2012) [Westlaw]
Chris Hanretty & Christel Koop, Shall the law set them
free? The formal and actual independence of regulatory agencies, (2012)
Regulation & Governance [Wiley]
Steffen Ganghof, Bicameralism as a Form of Government (Or:
Why Australia and Japan Do Not Have a Parliamentary System) (September 2012)
Separation of Powers
Eric A. Posner, Balance-of-Powers Arguments and the
Structural Constitution (November 2012) [SSRN]
Modes of Governance and Regulation
Orly Lobel, New Governance as Regulatory Governance
(November 2012) [SSRN]
Jonathan G. S. Koppell & Jennifer Claire Auer, Is There
a Spirit of Governance?, 72 Public Administration Review 24 (2012) [Wiley]
Christopher Hood, Public Management by Numbers as a
Performance-Enhancing Drug: Two Hypotheses, 72 Public Administration Review 85
Fabrizio Cafaggi & Andrea Renda, Public and Private
Regulation: Mapping the Labyrinth (October 2012) [SSRN]
Environmental Law & Regulation
Dave Owen, Sea-Level Rise and the Endangered Species Act
(November 2012) [SSRN]
Giuseppe Dari-Mattiacci & Josephine van Zeben, Legal and
Market Uncertainty in Market-Based Instruments: The Case of the EU ETS, 19
N.Y.U. Envtl. L.J. 415 (2012) [Westlaw]
Lawrence G. Baxter, Capture Nuances in Financial Regulation,
47 Wake Forest L. Rev. 537 (2012) [Westlaw]
Chris Brummer, The New Politics of Transatlantic Credit
Rating Agency Regulation (November 2012) [SSRN]
Dalvinder Singh, The Role of External Auditors in Bank
Supervision: A Supervisory Gatekeeper? (November 2012) [SSRN]
Milton Harris, Christian C. Opp & Marcus M. Opp, Bank
Regulation with Private-Party Risk Assessments (November 2012) [SSRN]
Global Regulation/ Global Governance
Kenneth W. Abbott & Duncan Snidal, Taking responsive
regulation transnational: Strategies for international organizations, (2012)
Regulation & Governance [Wiley]
Michael W. Toffel, Jodi L. Short & Melissa Ouellet,
Reinforcing Regulatory Regimes: How States, Civil Society, and Codes of Conduct
Promote Adherence to Global Labor Standards (November 2012) [SSRN]
Lisa Maria Dellmuth & Jonas Tallberg, The Social
Legitimacy of International Organizations: Interest Representation,
Institutional Performance, and Cosmopolitan Identities (September 2012) [SSRN]
Kevin M. Stack, Interpreting Regulations (Nov. 2012) [SSRN]
Francesca Bignami, Comparative Administrative Law (Nov.
Sidney A. Shapiro, Elizabeth C. Fisher & Wendy E.
Wagner, The Enlightenment of Administrative Law: Looking Inside the Agency for
Legitimacy, 47 Wake Forest L. Rev. 463 (2012) [Westlaw]
Cynthia R. Farina et al., Knowledge in the People:
Rethinking 'Value' in Public Rulemaking Participation (Nov. 2012) [SSRN]
Nuno Garoupa, Marian Gili & Fernando Gómez-Pomar,
Political Influence and Career Judges: An Empirical Analysis of Administrative
Review by the Spanish Supreme Court, 9 Journal of Empirical Legal Studies 795
(2012) [Wiley Online]
Kevin M. Stack, Interpreting Regulations (Nov. 2012) [SSRN]
Thomas W. Merrill, Justice Stevens and the Chevron Puzzle,
106 Northwestern University Law Review 551 (2012) [Westlaw]
Alysia Blackham & George Williams, The Appointment of
Ministers from Outside of Parliament (Oct. 2012) [SSRN]
Dawn Johnsen, "The Essence of a Free Society": The
Executive Powers Legacy of Justice Stevens and the Future of Foreign Affairs Deference,
106 Northwestern University Law Review 467 (2012) [Westlaw]
Victoria F. Nourse, A Decision Theory of Statutory
Interpretation: Legislative History by the Rules, 122 Yale L.J. 70 (2012)
Modes of Governance and Regulation
Eric Tucker, Old Lessons for New Governance: Safety or
Profit and the New Conventional Wisdom (Oct. 2012) [SSRN]
Gillian E. Metzger, To Tax, To Spend, To Regulate, 126 Harv.
L. Rev. 83 (2012) [HLR]
Environmental Law & Regulation
Robert V. Percival, Human Rights and the Evolution of Global
Environmental Law (Nov. 2012) [SSRN]
Nicholas A. Robinson et al., Comparative Environmental Law
and Regulation (Aug. 2012) [SSRN]
Jeffrey Manns, Downgrading Rating Agency Reform (Nov. 2012)
William A. Birdthistle & M. Todd Henderson, Becoming the
Fifth Branch (Oct. 2012) [SSRN]
EU Administrative Law
Vihar Georgiev, Too Much Executive Power? Delegated
Law-Making and Comitology in Perspective (Oct. 2012) [SSRN]
Global Regulation/ Global Governance
Lukasz Gruszczynski, The REACH Regulation and the TBT
Agreement: The Role of the TBT Committee in Regulatory Processes (Sept. 2012)
Peer Zumbansen, Lochner
Disembedded: The Anxieties of Law in a Global Context (Nov. 2012) [SSRN]
Jonathan H. Adler, Placing 'REINS' on Regulations: Assessing
the Proposed REINS Act (Oct. 2012) [SSRN]
Mark Considine, Governance Networks and the Question of
Transformation, in: Public Administration (Nov. 2012) [Wiley]
Elaine Fahey & Ester Herlin-Karnell, EU Law QUA Global
Governance Law? Deciphering Regulatory and Constitutional Competence between EU
Environmental Law and Global Governance - Special Issue Editorial (Oct. 2012)
Michael Riegner, Measuring the Good Governance State: A
Legal Reconstruction of the World Bank's 'Country Policy and Institutional
Assessment' (Oct. 2012) [SSRN]
Keith H. Hirokawa & Elizabeth J. Porter, Aligning
Regulation with the Informational Need: Ecosystem Services and the Next
Generation of Environmental Law (Oct. 2012) [SSRN]
Dieter Zinnbauer, "Ambient Accountability" - Fighting
Corruption When and Where it Happens (Oct. 2012) [SSRN]
Fabrizio Cafaggi & Andrea Renda, Public and Private
Regulation: Mapping the Labyrinth (Oct. 2012) [SSRN]
Richard Ekins, The Nature of Legislative Intent:
Introduction (Oct. 2012) [SSRN]
Georgios Dimitropoulos, Global Administrative Law as
'Enabling Law': How to Monitor and Evaluate Indicator-Based Performance of
Global Actors (Oct. 2012) [SSRN]
Michael J. Graetz & Jerry L. Mashaw, Constitutional
Uncertainty and the Design of Social Insurance: Reflections on the ACA Case
(Sept. 2012) [SSRN]
Stephen M. Johnson, Beyond the Usual Suspects: ACUS,
Rulemaking 2.0 and a Vision for Broader, More Informed and More Transparent
Rulemaking (Aug. 2012) [SSRN]
Benjamin M. Saper, Note. The International Finance
Corporation's Compliance Advisor/Ombudsman (CAO): An Examination of
Accountability and Effectiveness from a Global Administrative Law Perspective,
44 N.Y.U. J. Int'l L. & Pol. 1279 (2012) [Westlaw]
Patrick L. Warren, Allies and Adversaries: Appointees and
Policymaking Under Separation of Powers, 28 J.L. Econ. & Org. 407 (2012)
Arden Rowell, Partial Valuation in Cost-Benefit Analysis, 64
Admin. L. Rev. 723 (2012) [Westlaw]
Jill E. Family, Administrative Law Through the Lens of Immigration
Law, 64 Admin. L. Rev. 565 (2012) [Westlaw]
Melissa F. Wasserman, The Changing Guard of Patent Law:
Chevron Deference for the PTO (Oct. 2012) [SSRN]
Greg Distelhorst, Publicity-Driven Accountability in China:
Qualitative and Experimental Evidence (Sept. 2012) [SSRN]
Jon D. Michaels, Privatization's Progeny (Aug. 2012) [SSRN]
Below is the second installment of the New Scholarship
Series, a new initiative on the Comparative Administrative Law Blog. As always,
please use the Contact form of the Blog to suggest scholarship for inclusion in
Julia Black, Calling Regulators to Account: Challenges,
Capacities and Prospects (2012) [SSRN]
Sabino Cassese, New paths for administrative law: A
manifesto, 10 Int'l J. Const. L. 603 (2012) [Oxford Journals]
Carrie Leonetti, Watching the Hen House: Judicial Rulemaking
and Judicial Review, 91 Neb. L. Rev. 72 (2012) [Westlaw]
Mark Elliott & Christopher F. Forsyth, A Right to
Administrative Justice? (Oct. 2012) [SSRN]
Giuseppe Bellantuono, Comparing Regulatory Innovations for
Climate Change: Smart Grids Policies in the USA and the EU (2012) [SSRN]
Aziz Z. Huq, Enforcing (But Not Defending) 'Unconstitutional'
Laws, 98 Va. L. Rev. 1001 (2012) [Westlaw]
Sean J. Griffith, Governing Systemic Risk: Towards a
Governance Structure for Derivatives Clearinghouses, 61 Emory L.J. 1153 (2012)
Benjamin Van Rooij, The People's Regulation: Citizens and Implementation
of Law in China, 25 Colum. J. Asian L. 116 (2012) [Westlaw]
Ida Haryanti Binti Mohd Noor
& Radiah Othman, Budgetary Participation: How it Affects Performance
and Commitment (Oct. 2012) [SSRN]
Zubair Shahid, The Role of Political Incentives in Designing
Decentralization Reforms (2012) [SSRN]
Richard A. Bierschbach & Stephanos Bibas, Notice-and-Comment
Sentencing (Oct. 2012) [SSRN]
Ellen P. Aprill, The Impact of Agency Procedures and
Judicial Review on Tax Reform (Oct. 2012) [SSRN]
Nicholas W. Barber, Self-Defence for Institutions (Oct.
Graham Mayeda, Legal Aspects of the Security-Development
Nexus: International Administrative Law as a Check on the Use of Development
Assistance in the 'War on Terror', 13 Chi. J. Int'l L. 71 (2012) [Hein]
Stephen M. Johnson, In Defense of the Short Cut, 60 U. Kan.
L. Rev. 495 (2012) [Westlaw]
Robert L. Glicksman, Governance of Public Lands, Public
Agencies, and Natural Resources (Oct. 2012) [SSRN]
Farrah Ahmed & Adam Perry, Promises, Practices, and
Policies: A Rule-Based Unification of the Doctrine of Legitimate Expectations
(Oct. 2012) [SSRN]
William F. West & Connor Raso, Who Shapes the Rulemaking
Agenda? Implications for Bureaucratic Responsiveness and Bureaucratic Control
Kanishka Jayasuriya, Regulatory State with Dirigiste
Characteristics: Variegated Pathways of Regulatory Governance (Oct. 2012) [SSRN]
Mark Elliott, Ombudsmen, Tribunals, Inquiries: Re-Fashioning
Accountability Beyond the Courts (Aug. 2012) [SSRN]
Ethan J. Leib, Localist Statutory Interpretation (Oct. 2012)
Stavros Gadinis, From Independence to Politics in Financial
Regulation (Aug. 2012) [SSRN]
Jim Rossi & Thomas G. Hutton, Federal Preemption and the
Clean Energy Floor (Aug. 2012) [SSRN]
Emily S. Bremer, The Unwritten Constitution of the Fourth
Branch (Aug. 2012) [SSRN]
Ronald J. Krotoszynski, The Separation of Legislative and
Executive Powers (Oct. 2012) [SSRN]
Rachel E. Barkow, Prosecutorial Administration (Aug. 2012)
Jarrod Hepburn, The Duty to Give Reasons for Administrative
Decisions in International Law, 61 Int'l & Comp. L.Q. 641 (2012) [Cambridge
Anya Bernstein, Congressional Will and the Role of the
Executive in Bivens Actions: What is Special About Special Factors? 45 Ind. L.
Rev. 719 (2012) [Westlaw]
J.B. Ruhl, The Endangered Species Act's Fall from Grace in
the Supreme Court, 36 Harv. Envtl. L. Rev. 487 (2012) [Westlaw]
William L. Andreen, Of
Fables and Federalism: A Re-Examination of the Historical Rationale for Federal
Environmental Regulation, 42 Envtl. L. 627-679 (2012) [Westlaw]
Caroline E. Foster, Adjudication, Arbitration and the Turn
to Public Law 'Standards of Review': Putting the Precautionary Principle in the
Crucible (Oct. 2012) [SSRN]
Robert Thomas, From 'Adversarial v Inquisitorial' to
'Active, Enabling, and Investigative': Developments in UK Administrative
Tribunals (Sept. 2012) [SSRN]
Rhonda A. Breit, Paul Henman & Rick Snell, Towards a
Qualitative Approach to Evaluating Access to Information Legislation (Sept.
Varda Bondy & Andrew Le Sueur, Designing Redress: A
Study About Grievances Against Public Bodies (Aug. 2012) [SSRN]
William E. Scheuerman, Emergencies, Executive Power, and the
Uncertain Future of US Presidential Democracy, 37 Law & Soc. Inquiry 743
Christopher S. Yoo, A Clash of Regulatory Paradigms (Oct.
Joanna Bird, Regulating the Regulators: Accountability of
Australian Regulators, 35 Melb. U. L. Rev. 739 (2011) [Hein]
We are excited to begin a new initiative on the Comparative
Administrative Law Blog. We will be monitoring the academic literature and
compiling lists of recent articles on administrative law broadly defined. These
periodic updates will employ a variety of sources including, for example, the
University of Washington's Current Index to Legal Periodicals.
We will also include links to abstracts and/or the full text of the articles.
On several occasions, access to the full text of the articles will require a
fee-based subscription. Below is the first installment of the New Scholarship
series. Please use the Contact form of the Blog to suggest scholarship for
inclusion in forthcoming updates.
Louis J. Virelli III, Science, Politics, and Administrative
Legitimacy (2013) [SSRN]
Ellen Dannin, Privatizing Government Services in the Era of
ALEC and the Great Recession, 43 U. Tol. L. Rev. 503 (2012) [Westlaw]
Christopher Hood& Ruth Dixon, A Model of Cost-Cutting in
Government? The Great Management Revolution in UK Central Government
Reconsidered, in: Public Administration (Oct. 2012) [Wiley-Blackwell]
Michael A. Livermore & Richard L. Revesz, Regulatory
Review, Capture, and Agency Inaction (2012) [SSRN]
Mark Humphery-Jenner, Does Deference Promote Principled
Interpretations of Statutes? (2012) [SSRN]
Charles Tiefer, Can the President and Congress Establish a
Legislative Veto Mechanism for Jointly Drawing Down a Long and Controversial War?,
6 J. Nat'l Sec. L. & Pol'y 131 (2012) [Westlaw]
Alasdair S. Roberts, Transparency in Troubled Times (2012) [SSRN]
Harold M. Greenberg, Why Agency Interpretations of Ambiguous
Statutes Should be Subject to Stare Decisis, 79 Tenn. L. Rev. 573 (2012) [Westlaw]
Barak Orbach, What is Regulation? (2012) [SSRN]
David S. Levine, Bring in the Nerds: Secrecy, National
Security, and the Creation of International Intellectual Property Law. 30 Cardozo
Arts & Ent. L.J. 105 (2012) [Westlaw]
Graham Mayeda, Legal aspects of the security-development
nexus: international administrative law as a check on the use of development assistance
in the "war on terror," 13 Chi. J. Int'l L. 71 (2012) [Westlaw]
On Amir & Orly Lobel, Liberalism and Lifestyle:
Informing Regulatory Governance with Behavioural Research (2012) [SSRN]
Jim Rossi & Thomas Hutton, Federal Preemption and the
Clean Energy Floor (2012) [SSRN]
M. Todd Henderson & Frederick Tung, Reverse Regulatory
Arbitrage: An Auction Approach to Regulatory Assignments (2012) [SSRN]
David A. Hyman & William E. Kovacic, Government
Organization/Reorganization: Why Who Does What Matters (2012) [SSRN]
Lumen N. Mulligan & Glen Staszewski, The Supreme Court's
Regulation of Civil Procedure: Lessons from Administrative Law, 59 UCLA L. Rev.
1188 (2012) [Westlaw]
Xin Qiu & Honglin Li, Energy Regulation and Legislation
in China. 42 Envtl. L. Rep. News & Analysis 10678 (2012) [Westlaw]
Sam Foster Halabi, International Trademark Protection and
Global Public Health: A Just- Compensation Regime for Expropriations and
Regulatory Takings, 61 Cath. U. L. Rev. 325 (2012) [Westlaw]
Rose Mary Bailly, Administrative Law, 62 Syracuse L. Rev.
475 (2012) [Westlaw]
Robert L. Rabin, Reflections on Tort and the Administrative
State, 61 DePaul L. Rev. 239 (2012) [Westlaw]
Peter H. Schuck, Professor Rabin and the Administrative State,
61 DePaul L. Rev. 595 (2012) [Westlaw]
Alexander Volokh, Prisons,
Privatization, and the Elusive Employee-Contractor Distinction (2012) [SSRN]
R. Craig Kitchen, Negative
Lawmaking Delegations: Discretionary Executive Authority to Amend, Waive, and
Cancel Statutory Text (2012) [SSRN]
Richard Lazarus, The National Environmental Policy Act in
the U.S. Supreme Court: A Reappraisal and a Peek Behind the Curtains, 100 Geo.
L.J. 1507 (2012) [Westlaw]
Edward F. Greene & Joshua L. Boehm, The Limits of
"Name-and-Shame" in International Financial Regulation, 97 Cornell L.
Rev. 1083 (2012) [Westlaw]
Aziz Z. Huq, Binding the Executive (by Law or by Politics)
(Reviewing Eric A. Posner and Adrian Vermeule, The Executive Unbound: After the
Madisonian Republic), 79 U. Chi. L. Rev. 777 (2012) [Westlaw]
James D. Cox & Benjamin J.C. Baucom, The Emperor has no
Clothes: Confronting the D.C. Circuit's Usurpation of SEC Rulemaking Authority,
90 Tex. L. Rev. 1811 (2012) [Westlaw]
Todd A. Eisenstadt & Carl LeVan, Democracy's Missing
Link: Interest Representation and State-Society Relations in Latin America and
Africa (2012) [SSRN]
Christopher Hodges, Model for Integrating Regulation and Dispute
Resolution (2012) [SSRN]
Blake Hudson, Federal Constitutions, Global Governance, and
the Role of Forests in Regulating Climate Change, 87 Ind. L.J. 1455 (2012) [Westlaw]
W. Bradley Wendel, Political Culture and the Rule of Law:
Comparing the United States and New Zealand (2012) [SSRN]
John Echeverria, Public Takings of Public Contracts, 36 Vt.
L. Rev. 517 (2012) [Westlaw]
Radoslaw Zubek & Katarina Staroňová, Organizing for EU
Implementation: The Europeanization of Government Ministries in Estonia,
Poland, and Slovenia, in: Public Administration (Aug. 2012) [Wiley-Blackwell]
Thomas Perroud brought to our
attention an interesting Opinion of the Committee on Petitions of the European
Parliament on the project of an EU Administrative Procedure Law.
In this Opinion (available here)
the Committee first points out that ‘soft-law' administrative procedures, which
can be modified unilaterally by the institution concerned, are not always sufficient
to protect the individual's right to good administration. It therefore calls on
the Commission to envisage a regulation providing for minimum standards of quality
and procedural guarantees that would be horizontally applicable to all Union administration.
The Committee further notes that the general principles of the future
European administrative regulation should include the principle of equality and
the principles of impartiality and independence, while guaranteeing fairness,
lawfulness and legal certainty and the principles of proportionality and
openness; it also encourages the introduction of the service principle, whereby
the administration should avoid unnecessarily cumbersome and lengthy procedures.
Moreover, the Committee on Petitions
stresses the urgent need to introduce more extensive administrative rules for
the procedure on public access to European Parliament, Council and Commission
documents, with particular regard to codifying the relevant case law of the
Court of Justice and extending the scope of the current Regulation to the whole
of the EU's administration. With respect to conflicts of interests, it notes
that the existing Staff Regulations need to be supplemented by rules governing
the consequences, such as the possible revocation of decisions taken in
violation of the rules on conflicts of interests.
The Equality and Human
Rights Commission (EHRC), the statutory body established under the Equality Act
2006 with a remit to monitor and promote human rights and equality in Great
Britain, launched today the Human Rights Review 2012. This landmark document,
as the Chief Executive of the EHRC described it, follows on from the Triennial
Review "How fair is Britain?" of October 2010 (more information on that 2010
report is available here).
The video of today's
launch event in London is available here.
As the Commission's Lead Commissioner for Human Rights, Prof. Geraldine Van
Bueren, noted in her keynote address (available in the video we just linked to), the Human
Rights Review 2012 "gives us for the first time a clear picture of the human
rights situation in England and Wales using statistics, individuals'
experiences and the works of many organizations."
You can read the Executive
Summary and also download the full Review chapter-by-chapter here. The Review assesses
how well Britain is meeting its human rights obligations under the European
Convention of Human Rights and its own Human Rights Act 1998 (HRA) which gives
effect to the Convention.
- It sets out the
rights and freedoms protected in the Convention, and assesses to what extent
each is enjoyed by people living in Britain today.
- It looks at how UK
laws, institutions and institutional processes support and protect each right.
- It highlights the
many ways in which the protection of human rights in Britain has been
strengthened in recent years by law, policy and practice.
-It also, however,
exposes some key areas where the EHRC believes serious human rights problems
could be better tackled and protections ensured.
As to the very last
point, the Review (and the Executive Summary) identify ten areas where
legislation, institutions, policy or services could protect human rights more
1. Health and social
care commissioners and service providers do not always understand their human rights
obligations and the regulator's approach is not always effective in identifying
and preventing human rights abuses.
I find this shortcoming very interesting from an administrative law perspective because it reflects the
debate (quite salient in the UK) on the application of public values, especially
human rights protections, on the private sector providing important services.
As the Executive Summary points out, the reason for this first problem it
identifies "may lie partly with the scope of the HRA and agencies' poor understanding
of their HRA responsibilities. People who receive health or social care from private
or voluntary sector providers do not have the same guaranteed level of direct protection
under the HRA as those receiving it from public bodies. However, their rights may
be protected indirectly as the public authorities that commission health and
social care services from independent providers have positive obligations to
promote and protect the human rights of individual service users. Yet the
Commission's recent inquiry into home care showed that many local authorities
and primary care trusts have a poor understanding of their positive obligations
under the HRA and do not include human rights in the commissioning criteria
around the quality and delivery of care."
The Lead Commissioner also
highlighted this point in her keynote address quoted above noting that "84% of
publicly funded care that is delivered by the private and voluntary sectors is
not covered by this essential human rights protection."
The other areas in
which the Review suggests public authorities could be doing more are:
2. The justice system
does not always prioritize the best interests of the child.
3. Police custody and
prisons do not always have sufficient safeguards and support when dealing with
4. Investigations into
deaths of people under protection of the state are not always independent,
prompt or public, potentially breaching right to life investigative
5. Providing a system
of legal aid is a significant part of how Britain meets its obligations to
protect the right to a free trial and the right to liberty and security.
Changes to legal aid provision run the risk of weakening this.
6. The legislative and
regulatory framework does not offer sufficient protection of the right to a private
life and for balancing the right to a private life with other rights.
7. The human rights of
some groups are not always fully protected.
and public order legislation designed to protect everyone can risk undermining several
9. Allegations of
involvement and complicity in torture in overseas territories, and the
government's failure so far to carry out an independent inquiry into these allegations,
risk breaching Article 3.
procedures can favor administrative convenience over safeguarding individuals'
rights to liberty and security. Periods in detention can be unlawful if release
or removal is not imminent.
Another reason why
this report is particularly interesting is that it is timely. To use the language
of the Review itself: "[T]he long running debate about the effectiveness of the
HRA led the Coalition Government to set up an independent Commission on a Bill
of Rights in March 2011 which will report by the end of 2012. In early 2012,
the government also announced its views on the need for reform of the European
Court of Human Rights. This review is thus all the more timely in assessing the
government and public authorities' compliance with the Convention, and the
benefits of doing so for everyone in Britain. The Commission's 2009 Human Rights
Inquiry found that a human rights approach could contribute to better service planning
and delivery by focusing on the needs of individuals using public services. [The
2012 review] demonstrates that Britain's human rights framework has contributed
much to the better working of government and public services, and to the
ability of citizens to protect their rights."
Last year we covered
Executive Order 13,563 ("Improving Regulation and Regulatory Review") outlining the Obama
administration's regulatory strategy. One of the prongs of that strategy was
the retrospective analysis of existing rules that may be outmoded, ineffective,
insufficient, or excessively burdensome.
As a result of that government-wide
review of regulations already on the books, twenty-six executive agencies as
well as a few independent agencies identified initiatives to reduce burdens and
unjustified costs. Preliminary plans were released for public comment; final
plans were formulated later in the summer of 2011; and this month, agency
updates on regulatory reform became available on the White House page for a "21st-century
In a post on the
OMBlog yesterday, Prof. Cass Sunstein, the Administrator of the Office of Information and
Regulatory Affairs, highlights some of the featured plans and reform progress.
This is an ongoing
effort and, in fact, figured in the State of the Union address last week (the
full transcript of which is available here).
President Obama alluded to Executive Order 13,563 noting: "There's no question
that some regulations are outdated, unnecessary, or too costly. (...) I've ordered every federal agency to
eliminate rules that don't make sense.
We've already announced over 500 reforms, and just a fraction of them
will save business and citizens more than $10 billion over the next five
years. We got rid of one rule from 40
years ago that could have forced some dairy farmers to spend $10,000 a year
proving that they could contain a spill -- because milk was somehow classified
as an oil."
It will therefore be interesting
to see how the effort to eliminate regulatory burdens and cut waste will
continue to unfold, including the latest updates from independent agencies whose reports on
retrospective review are not yet available on the website linked to above.
On several occasions this blog has referred to the Obama Administration's initiatives to promote open government (see, e.g., here, here, and here). Yesterday the White House released a Status Report on this topic (The Obama Administration's Commitment to Open Government: A Status Report, accompanied by a post on the White House Open Government Blog).
According to this Report, "for more than two and a half years federal agencies have done much to make information about how government works more accessible to the public and, beyond that, to solicit citizens' participation in government decision-making. Thus agencies have disclosed more information requested under the Freedom of Information Act. They have devised ambitious Open Government Plans designed to increase opportunities for public engagement. They have made voluminous information available on government websites. They have shined more light on federal spending. They have even undertaken to provide more disclosure of previously classified information and other types of information normally withheld from the public. Finally, agencies have also used technology in innovative ways that leverage government information to improve the lives of citizens, and have successfully encouraged those outside of government to do the same." The Report also anticipates next steps towards strengthening open government.
This document is organized around the following headings:
1. Freedom of Information: The Report reiterates the Administration's commitment to a reinvigorated freedom of information as summarized in President Obama's January 2009 FOIA Memorandum: Presume openness; disclose affirmatively; and modernize. Furthermore, it includes data suggesting increased disclosure: Over the last fiscal year (i.e., from October 2009 through September 2010) agencies made full disclosures -i.e., un-redacted disclosure of all requested information- for nearly 56% of all FOIA requests where responsive records were processed. Taking partial and full disclosures together, agencies made disclosures in 93-94% of all processed FOIA requests over the same period of time. The Report also highlights improvements to the agencies' FOIA infrastructure as well as proactive disclosure.
2. The Open Government Initiative: The Report refers to OMB's Open Government Directive and provides an update on Agency Open Government Plans including examples of such agency activities.
3. Data.gov and Data-Driven Innovation: According to the Report, as agencies developed their Open Government Plans, they made large amounts of information available to the public, in part through a centralized government platform, Data.gov. This platform, "a warehouse of original government information," now provides the public with access to hundreds of thousands of agency data sets. More specifically, by May 2010, one year after Data.gov's creation, federal agencies had provided the public with access to over 272,000 data sets. By September 2011, the number of agency data sets newly available to the public grew to over 389,000. These data are accessible to anyone, policy advocates, academic researchers, data developers, and entrepreneurs. As a result, they have been used to create useful applications for ordinary citizens; examples of such applications are available in the Report.
4. Spending Transparency: The Report informs us that the Administration's openness efforts have placed great emphasis on disclosure of federal spending decisions as well. It touches on a number of websites providing that transparency, and furthermore soliciting public participation to ensure the best use of taxpayer dollars.
5. Sensitive Government Information: The Report discusses Obama's Executive Order 13526 that imposes limits on the classification of government documents, and initiated the declassification of voluminous government information that should no longer be kept from the public. The Report argues that this Executive Order has already begun to have an effect: executive branch agencies in fiscal year 2010 reduced their personnel authorized to classify documents by 7%, recording their lowest number to date. Agencies also employed a 10-years-or-fewer classification designation for 74% of all original classification decisions, which is the highest percentage of that short-term designation used to date. With respect to declassification, the executive branch reviewed 53.1 million pages of classified information, and declassified 29.1 million pages (55.4%).
Last, the Report talks about the initiatives to enhance transparency in the White House and the Administration's engagement in promoting open government internationally.
The Governance and Public Law Center at Sciences Po and the Continental Law Foundation are organizing their third seminar on economic analysis of public law and policies on the following theme: «CORRUPTION AND CONFLICTS OF INTERESTS». The workshop will take place on September 28, 2011, at Sciences Po in Paris. For more information, please see the invitation attached here.
In 1994, Susan Rose-Ackerman asked the
following provocative question: American administrative law under siege: Is Germany
a model? (107 Harv. L. Rev. 1279 (1994), also available here). She noted: "The American regulatory state is under attack. Economists
criticize the irrationality of substantive policies. Political scientists
attack administrative policymaking and implementation as cumbersome,
disjointed, and adversarial. Law professors argue that the administrative
process is legalistic, time-consuming, and ineffective. Commentators, including
some now on the federal bench, argue that judicial scrutiny has induced agencies
to make fewer rules and to seek less accountable ways of making policy. . . . The
criticisms have built to such a crescendo that the system seems in crisis"
(internal citations omitted). To evaluate the debate over American
administrative law, the article contrasted the US system with Germany's quite different
structure and concluded that "appearances are deceiving. Although reform is
needed, many critics have overstated their case. The most popular reform
proposals would destroy much of value in the American system."
On the occasion of the recent publication of the 2011 Public
Report of the French Conseil d'Etat with the interesting title "Consulting
differently, participating effectively" (Rapport
public 2011: Consulter autrement, participer effectivement), I would like
to suggest that we are witnessing what could be called a reverse US-French
administrative rapprochement: that is to say, a noteworthy transformation of certain
aspects of the French administrative model seemingly in a direction recalling
the US model. This idea will sound controversial: after all, the French droit administratif model and the US
common law model (coupled, however, with the fundamental 1946 statute, the
Administrative Procedure Act) developed as two distinctive -sometimes opposing-
systems presenting their own historical particularities. This original divergence,
I would argue, does not challenge the very basis of the latest developments suggesting
an administrative rapprochement. Nevertheless, it is a useful reminder, as Susan
Rose-Ackerman's article also suggests in a different context, that a clear-cut "siege-solution
model" might oversimplify things, and offers a cautionary note on what foreign experiences
might teach us.
I hope to take up some of these questions in future posts,
but I would limit this inquiry here to two aspects drawn from the Public Report
of the Conseil d'Etat: the proposed expansion of impact assessments (études d'impact) and the codification of
the non-contentious administrative procedure (procédure administrative non contentieuse), i.e., the procedure
within the administration and not before courts. [The full version of the
Public Report is not available online, and a paper version will become
available after July 8; however, links to the principal proposals of the
Conseil d'Etat and a Q&A document are available here]
Pursuant to article 39 of the French Constitution (as
amended in July 2008) and Organic Law No. 2009-403 of 15 April 2009, government
bills must be accompanied by an impact assessment (IA). This law sets out in
detail in article 8 the content requirements to be met by these studies: The
impact assessment shall evaluate the economic, financial, social and
environmental consequences as well as the financial costs and benefits expected
from the provisions of the bill. This language is similar to the US model of
cost-benefit analysis (CBA) accompanying major regulations. Two noteworthy
differences between the French impact assessment system and the US CBA model:
the latter places an emphasis on "net-benefit maximization," while the former explicitly
attempts to accommodate social and environmental considerations, in other
words, includes (political) value judgments. Furthermore, CBA is required prior
to the adoption of major regulatory policies, whereas in the French system, IAs
pertain to legislative policy since the statutory requirement is only that they
In its 2011 Public Report, the Conseil d'Etat seeks to
bridge this gap by proposing the gradual expansion of the IA requirement to also
cover decrees adopted in application of statutes or in the exercise of the
autonomous regulatory powers of the executive. In other words, if adopted, this
proposal would now introduce a French version of regulatory CBA. One could
welcome this potential development on the grounds that it is precisely in the
regulatory arena, where regulatory measures are of a more technical nature than
are general statutes, that the net-benefit maximization promise of CBA appears
more appealing. However, such a development would also bring to the fore the
cautionary tales drawn from the US experience; indeed, US scholars have pointed
to measurement difficulties associated with CBA as well as to the flaws and
limitations of this model that render it an inappropriate metric in several
policy areas (for some recent examples, see Douglas Kysar, Regulating from
Nowhere: Environmental Law and the Search for Objectivity (2010); Susan
Rose-Ackerman, Putting Cost-Benefit Analysis in Its Place: Rethinking
Regulatory Review, 65 U. Miami L. Rev. 335 (2011)). Therefore, in expanding IA
to cover administrative policymaking France need also be conscious of the inherent
limitations of this approach as showcased in the US experience.
The second focal point of the Public Report for our purposes
concerns the organization of consultation processes. As our previous post explained, France has had its share of experimentation with processes
purporting to solicit public input and bring the administration closer to the
citizens: public inquiry (enquête
publique), public debate (débat
public), deliberation (concertation).
These processes, however, do not reflect a holistic approach to citizen
participation in public decisionmaking. The Conseil d'Etat similarly
acknowledges this fragmentation and highlights the need for the rationalization
and the coherent and effective organization of these processes. It therefore
proposes the adoption of a statute-code (loi-code)
"related to the principles of deliberative administration" that would include
the guiding principles of open consultations. This would not constitute a mere
codification of existing provisions, but the legislator could insert new
solutions. The Conseil d'Etat seems to favor open consultations earlier in the
decisionmaking process to the late consultation of special consultative
administrative bodies that it finds to be too numerous. To this effect, the
Conseil d'Etat refers to article 16 of the recent "Warsmann law" (see our
previous post for a more detailed description and assessment of this provision) which it describes as an "ambitious" and "quite radical" measure. All in all,
the reform proposals of the Conseil d'Etat reflect significant aspects of the
US model: the need for codification of the non-contentious administrative
procedure in the "example of other countries" (the US Administrative Procedure
Act is not explicitly mentioned in the documents that are currently available,
but it would be safe to assume that it is cited in the full report); a
preference for open public consultations; the use of the possibilities opened
up by the internet to carry out these processes.
However, in the promotion of these notice and comment-like
processes, one issue stands out: the role of judicial review. The Public Report
refers to article 70 of the Warsmann law, whereby "when an administrative
agency, before taking a decision, consults an administrative body, only the
irregularities susceptible to have exercised an influence on the direction of
the decision... can be invoked against this decision. This provision similarly
applies to open consultations carried out in application of article 16 of this
law." According to the Conseil d'Etat this provision tends to reinforce legal
security by limiting the cases of invalidation of administrative acts issued
after consultation. However, according to the highest administrative court, article
70 comes with problems of its own in that it assigns to the judge an essential
but difficult role. In the words of the Conseil d'Etat: "In fact, how can we
determine and appreciate the influence of the irregularity on the decision? The
formulation ‘only the irregularities susceptible to have exercised an influence
on the direction of the decision... can be invoked against the decision' lead the
judge to reconstruct the chain of events and verify that the agency, even
without the error it committed, would have in any event taken the same
decision. Nevertheless, confronted with a consultative process that is often
complex and long, the judge is led to assume the responsibility of
hierarchizing in view of the diversity of the factual circumstances between the
essential and the accessory. This is an enterprise that resembles more the full
jurisdictional control (contrôle de plein
contentieux) than that of excess of power (excès de pouvoir). The judge is placed in a position of
subjectively evaluating intentions rather than objectively pointing out
irregularities. ... From now on, a substantial flaw is one that would have a real
effect on the content of the decision, a link which is very difficult to
establish." Therefore, the Conseil d'Etat proposes a "more objective
conception of the scope of irregularity that would take into account the length
and complexity of the procedure, the nature of the irregularity notably in view
of the guaranties for interested and third parties and the general interest
attached to the contested activity, according to an approach balancing the
risks and the advantages."
Objections could be raised as to the "objective character"
of the alternative standard of judicial review that the Conseil d'Etat proposes
in that it seems to introduce criteria that call for the evaluation of the
quality of the consultative process. However, the latter is inextricably linked
with the substantive issues that this process concerns, so it would at any rate
call for some sort of substantive assessment on the part of the judge. However,
the key issue here is different: irrespective of the interpretation adopted,
article 70 of the Warsmann law purports to limit "judicial excesses" in the
vindication of participatory processes. To use a vocabulary that would sound
familiar to US scholars, the Warsmann law and the Conseil d'Etat clearly seek
to avoid a "hard look doctrine" à la française and constrain the role of the
judiciary in examining policy and procedural choices made by the agency. This
expressed choice is in sharp contrast with the US experience where courts
beefed up the provisions of the APA and were considered as an important guarantor
of administrative accountability.
But then this is the most interesting point of comparison:
the administrative rapprochement that we talked about in the introduction does
not, at least at the initial stages of the institutional design, lead to a full
convergence of the two models. Will this piecemeal borrowing lead to a
different development of participatory processes in France? If so, would this
divergent development be attributable to the lack of an equally robust -or,
rather, searching- judicial review or more generally to the different French
administrative culture -or is the lack of a strong judicial review of
participatory processes itself a function of the French administrative culture?
Differently put, and to echo the terms of a fundamental question of comparative
law theory: if we accept the possibility of legal transplants, and treat open
participatory processes as such a transplant, will the functions it will
develop hinge on the organism within which it will operate? In a related vein, might
it fail due to the fact that the whole system (participatory processes and strong judicial guarantees) was not
transplanted into this new environment? It is too early to provide any
definitive answers, but the developments in the French administrative system
are certainly an interesting case study for comparative administrative law.
One of the interesting
questions of administrative reform is setting up mechanisms to enable the
direct involvement of the public in the administrative policymaking process. The
U.S. Administrative Procedure Act (A.P.A.), adopted in 1946, provided early on
such a model especially with respect to informal rulemaking. Section 553 of the
A.P.A. stipulates that, when making rules or regulations having binding effect
on private parties, the agency must provide notice of its proposal, an
opportunity for affected parties to comment, and "a concise general statement"
of the basis and purpose of the rules. U.S. scholars have advocated the
adoption of equivalent participatory processes in other legal orders; similarly,
domestic reformers have looked to the A.P.A. for inspiration when drafting the codes
of administrative procedure in their respective jurisdictions.
France has had its share
of experimentation with processes purporting to solicit public input and bring
the administration closer to the citizens: public inquiry (enquête publique), public debate (débat public), deliberation (concertation). In a similar vein,
regulatory agencies overseeing specific public utilities sectors -such as the Autorité
de régulation des communications électroniques et des postes in the area of
electronic communications and postal services, and the Commission de régulation
de l'énergie in the energy sector- employ consultation processes that look
analogous to notice-and-comment. All these forms of participation share a
common feature: they are sector-specific. They apply to specific areas of
public action -for example, energy, telecommunications, urban planning,
environmental questions, often at the local level- and are included in specific
pieces of legislation, unlike the generalized obligation that the A.P.A.
A legislative text
expected to be officially signed into law in France soon -after having passed
through both legislative bodies as well as the scrutiny of the Conseil Constitutionnel last week- seems
at first sight to challenge this story. The "Warsmann law" (from the name of
the deputy, Jean-Luc Warsmann, that sponsored the bill) or, officially, the law
for the "simplification and improvement of the quality of the law" introduces
an article (Article 8 in the original bill, renumbered as 16 at the end of the
amendment process) that reads:
When an administrative authority
is obliged to consult an organization prior to the promulgation of a regulatory
act, it may decide to organize an open consultation allowing for the collection
of comments from affected persons, on a website or by all other means.
At the end of the
consultation, it produces a synthesis of the comments received by the agency,
eventually accompanied by complementary elements of information. This synthesis
is made public.
This open consultation
substitutes for the mandatory consultations in application of a legislative or
regulatory provision. The organizations whose opinion must be received in
application of a legislative or regulatory provision may offer their comments
in the context of the consultation provided for in this article.
As an exception to the provisions of this article, the
following consultations remain mandatory: those concerning an independent
administrative authority, those requiring the assent (avis conforme) [of the consultative body],
those regarding the exercise of a public freedom and those pertaining to the
A decree following consultation with the Conseil d'Etat
shall determine the conditions of application of this article, notably the
modalities of the organization of the consultation, the duration of which might
not be inferior to fifteen days.
Therefore, this statute introduces
a system of "open consultation" that may replace the formal, institutionalized
process of agencies consulting consultative bodies. This "open consultation" comprises
elements that sound familiar from the description of the US notice-and-comment
model. More importantly, this process is not sector-specific. Could we then talk
about an open consultation practice generalized across the wider spectrum of French
administration similar to the American A.P.A.?
I think the features of this new
system would provide a clear negative answer to this question, but it would be
interesting to first point out the "adventures" this article 8 (or 16) had to
go through before its final adoption. The legislative history of the "Warsmann
law" suggests that it was included in the final text not without opposition.
Article 8 was part of the legislative proposal as submitted by Jean-Luc
Warsmann. The National Assembly accepted this article in the first reading.
However, the Senate deleted it in the first reading. Then the National Assembly
reinserted it in the second reading. The Senate, again, deleted it in the
second reading. Article 8 was one of the questions that the commission mixte
paritaire (i.e., a committee bringing together seven deputies and seven
senators with the aim of reconciling the two legislative bodies on the basis of
a common text) had to resolve. This committee ended up including article 8, as
adopted by the National Assembly, in the final text of the law -with the rapporteur for the Senate still
appearing reluctant. [More information on the "Warsmann
law" and the stages of its adoption is available here]
In its decision last week the Conseil Constitutionnel was not asked to and did not rule on the
constitutionality of article 8 (most of the complaints were of a procedural
nature). Therefore, this provision will soon be positive law. Does this mean
that we are witnessing the emergence of a notice-and-comment process à la française?
Even if we put to one
side the obvious reluctance of the legislature to adopt article 8 (or 16), I
think a fair characterization of the "Warsmann law" would be that it introduces
a watered-down version of the US notice-and-comment process for the following
First, if we look at the
statement of reasons accompanying Warsmann's legislative proposal, even though
the goal of associating the citizens with administrative decisionmaking is
mentioned, the purpose of the text is not so much to strengthen administrative
democracy as to streamline administrative operations. The concern is that the
latter are often delayed because in the traditional process the consultative
commissions do not always meet promptly to issue their opinions; this process
may now be replaced by "open consultations."
Second, article 8 is limited
in scope: It provides for open electronic consultation only when the original statute stipulates that specific
consultative bodies be consulted. It may only substitute for mandatory consultation
(consultation obligatoire) and even though there might be many instances of such
consultations obligatoires, the provision still falls short of general
Third, and more
importantly, this process is not mandatory. It permits but does not oblige the
agency to opt for the open consultation. Thus, it keeps with the tradition of
discretionary open consultations in other areas.
Admittedly, an initiative
of this nature should not necessarily be judged against the criterion of the older
(we might say, traditional) US notice-and-comment model neither was it cast in
those terms. In any event, the way in which the article 8 process is designed
allows for trial and error, and is therefore a welcome step forward toward the
generalization of participatory administrative processes in France. In fact, if
we might risk a prediction, we would say that within the next decade,
with the increasing familiarization of public authorities with these regulatory
general provision for citizen participation in administrative policymaking will
more smoothly be enshrined in the French legal system.
In a press conference in Brussels today the European Ombudsman, Nikiforos Diamandouros, presented his Annual Report 2010. The full Report (79 pages) and an 8-page Overview are available here.
The European Ombudsman explained that the key points of his new strategy include: (a) strengthening the ongoing dialogue with complainants, civil society, and other stakeholders, (b) identifying best practices from Ombudsmen in the Member States, with whom the European Ombudsman cooperates through the European Network of Ombudsmen and (c) enhancing the Ombudsman's role in promoting an administrative culture of service in the EU institutions. Such a culture involves, among other things, taking a proactive approach when interacting with citizens, as well as being ready to do more for citizens than merely to fulfill the institutions' legal obligations. The Overview highlights ten "star cases" that serve as examples of best practice in reacting to complaints. In this respect, the European Ombudsman underscores the example of the European Medicines Agency (EMA): "By taking the important policy step of adopting and publishing a new access to documents policy, EMA gave wider effect to two recommendations that I made to it."
As to the key statistics for 2010, the European Omudsman received a total of 2,667 complaints in 2010, compared to 3,098 complaints in 2009. 744 of those were within his mandate. The number of opened inquiries - 335 - and closed inquiries - 326 - remained stable in 2010 as compared to the previous year. This trend confirms, according to Nikiforos Diamandouros, that more people are now turning to the European Ombudsman for the right reasons.
Regarding the origin of complaints, Germany and Spain remained the source of the greatest number of complaints, but relative to the size of their population, the greatest proportion of complaints came from smaller Member States, namely, Luxembourg, Cyprus, and Belgium. The majority of complaints, i.e., 78%, were submitted by individual citizens, while 22% came from companies, NGOs, or other organizations and associations. However, as Diamandouros points out, complaints from the latter category are more often admissible and also lead to investigations more often.
In more than 70% of all cases received in 2010, the European Ombudsman was able to help the complainant by opening an inquiry into the case, transferring it to a competent body, or giving advice on where to turn. In 55% of the closed cases, the institution concerned accepted a friendly solution or settled the matter. In the other cases, the Ombudsman either did not find an instance of maladministration, or issued a recommendation that was accepted by the institution, a critical remark, or a special report to Parliament. As Diamandouros observes, the sustained reduction in critical remarks issued by his office is further positive evidence that the EU institutions are taking a more proactive role in resolving complaints and enabling win-win outcomes: in 2010, they made critical remarks in 33 cases, compared to 35 cases in 2009, and 44 cases in 2008. Understandably, most inquiries opened in 2010 (65%) concerned the Commission since the Commission is the main Union institution that makes decisions having a direct impact on citizens.
To conclude, with respect to the content of the complaints, by far the most common allegation examined by the Ombudsman was lack of transparency in the EU administration. This allegation arose in 33% of all closed inquiries and included refusal of information and of access to documents. Diamandouros notes with concern that the number of transparency cases has remained consistently high over recent years. Other types of alleged maladministration pertained to problems with the execution of EU contracts or calls for tenders, unfairness, abuse of power, and discrimination.
In a post on the White House Blog yesterday, entitled "Putting
it plainly," Cass Sunstein, the Administrator of the Office of Information and Regulatory
Affairs, describes the huge difference that the use of plain language on the part of
federal agencies can make. Sunstein notes that "far too often, agencies use confusing,
technical, and acronym-filled language. Such language can cost consumers and
small business owners precious time in their efforts to play by the rules. The
good news is that relatively small efforts to communicate more clearly can
minimize that burden."
On October 13, 2010, President Obama signed the Plain
Writing Act of 2010 into law. The Act calls for writing that
is clear, concise, and well-organized. This requirement applies to "covered
documents," that is to say, any document that:
- is necessary for obtaining any Federal Government benefit
or service or filing taxes (e.g., tax forms or benefit applications);
- provides information about any Federal Government benefit
or service (e.g., handbooks for Medicare or Social Security recipients); or
- explains to the public how to comply with a requirement
the Federal Government administers or enforces (e.g., guidance on how to
prepare required reports or comply with safety requirements).
The statutory definition also includes (whether in paper or
electronic form) a letter, publication, form, notice, or instruction, but does
not include a regulation.
To help federal agencies to comply with the Plain Writing Act
of 2010, Cass Sunstein issued a final guidance document on April 13, 2011
To mention some of the requirements: By July 13, 2011, each agency must:
- designate one or more Senior Officials for Plain Writing
who will be responsible for overseeing the agency's implementation of the Act
and this guidance;
- create a plain writing section of the agency website;
- communicate the Act's requirements to agency employees and
train agency employees in plain writing;
- establish a process by which the agency will oversee its
ongoing compliance with the Act's requirements; and
- publish an initial report, on the plain writing section of
the agency's website, that describes the agency's plan for implementing the
More information -including the writing guidelines that the
agencies should follow when drafting covered documents- is available on www.plainlanguage.gov/.
It is well-established law in France since at least 1932 that a public authority cannot delegate to private bodies core public functions, such as security for example. The Constitutional Council recently reiterated such a prohibition against Parliament that wanted to pass a bill on videotaping. The bill authorized local government to delegate this function to private entities.
In its decision (Conseil constitutionnel, 10 mars 2011, Loi d'orientation et de programmation pour la performance de la sécurité intérieure, n° 2011-625 DC, available here), the Constitutional Council reiterated the prohibition, holding that:
«Whereas by authorizing any corporate body to put in work surveillance devices beyond the "immediate" accesses of its buildings and installations and by entrusting to private operators the responsibility to exploit systems of videotaping on the public highway and to view the images on behalf of public bodies, the disputed provisions make it possible to invest private individuals with missions of general surveillance of the public highway ("voie publique"); that each one of these provisions makes thus possible the delegation to a private individual of general administrative police powers inherent to the exercise of the "public powers" ("force publique") necessary to the guarantee of rights; that, consequently, [this provision] must be declared contrary with the Constitution».
To understand fully this judgment one has to consider article 12 of the Declaration of human and civic rights of 26 august 1789 that provides: «To guarantee the Rights of Man and of the Citizen a public force is necessary; this force is therefore established for the benefit of all, and not for the particular use of those to whom it is entrusted». This public force cannot therefore be delegated to private entities.
This is just an application of old case-law. On 17 June 1932, in the case «Ville de Castelnaudary» (available here), the Conseil d'Etat held that:
«Whereas the deliberation quashed by the attacked decree ratifying a subscription made to the "Fédération audoise chasse-pêche-agriculture" for the use of one of the particular guards of this Federation for the intermittent monitoring of the rural properties; that the service of the rural police, by its nature, could be entrusted only to agents placed under the direct authority of the public administration; that by entrusting this service to a federation of private owners, the town council of Castelnaudary exceeded its powers».
The Court of Justice of the European Union issued today a press release (available here) with statistics regarding judicial activity in 2010.
According to this press release, in the entire history of the institution, there have never been so many cases brought before the three courts comprising the Court of Justice of the European Union: 1,406 cases were brought in 2010. That figure reflects the constant increase in the volume of European Union litigation. The document also draws our attention to another trend in 2010: the overall reduction in the duration of proceedings.
More specifically, in 2010 the Court of Justice had 631 new cases brought before it, which constitutes the highest number of cases brought in the Court's history. The situation is identical as regards references for a preliminary ruling. In 2010 the number of references for a preliminary ruling submitted was, for the second year in succession, the highest ever reached, and it exceeded the number in 2009 by 27.4% (385 cases in 2010 compared with 302 cases in 2009). The Court completed 574 cases in 2010, a slight decrease compared with the previous year (588 cases completed in 2009). As far as the duration of proceedings is concerned, the statistics show that in the case of references for a preliminary ruling, the average duration amounted to 16.1 months. A comparative analysis covering the entire period for which the Court has reliable statistical data shows that the average time taken to deal with references for a preliminary ruling reached its shortest in 2010.
With respect to the General Court, the press release highlights the large increase in the number of new cases brought, rising from 568 (in 2009) to 636 (in 2010), a level never reached before. The General Court completed 527 cases; this was, nevertheless, not sufficient to contain the increase in pending cases, which numbered 1,300 as of 31 December 2010. However, the duration of proceedings was reduced by an average of 2.5 months (from 27.2 months in 2009 to 24.7 months in 2010).
Chief Justice Roberts delivered today the 8-0 decision of the Supreme Court in the case Federal Communications Commission v. AT&T (Justice Kagan took no part in the case). The Court held unanimously that the protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. The text of the opinion is available here.
The Freedom of Information Act requires federal agencies to make records and documents publicly available upon request, subject to several statutory exemptions. Exemption 7(C) exempts "records or information compiled for law enforcement purposes" that "could reasonably be expected to constitute an unwarranted invasion of personal privacy."
AT&T participated in an FCC-administered program -the E-Rate (or Education-Rate) program- that was created to enhance access for schools and libraries to advanced telecommunications and information services. In August 2004, AT&T voluntarily reported to the FCC that it might have overcharged the Government for services it provided as part of the program. The FCC's Enforcement Bureau launched an investigation. As part of that investigation, AT&T provided the Bureau various documents. CompTel -"a trade association representing some of AT&T's competitors"- submitted a FOIA request seeking "‘[a]ll pleadings and correspondence'" in the Bureau's file on the AT&T investigation. The Bureau concluded that some of the information AT&T had provided should be protected from disclosure under FOIA Exemption 4, which relates to "trade secrets and commercial or financial information." The Bureau also decided to withhold other information under FOIA Exemption 7(C). The FCC agreed with the Bureau, but the Court of Appeals for the Third Circuit did not. The FCC petitioned the Supreme Court for review of the Third Circuit's decision and the Supreme Court today reversed.
AT&T argued that the word "personal" in Exemption 7(C) incorporates the statutory definition of "person," which includes corporations (the Administrative Procedure Act, §551(2), defines "person" to include "an individual, partnership, corporation, association, or public or private organization other than an agency.") However, the Court explained that adjectives do not always reflect the meaning of corresponding nouns. "Person" is a defined term in the statute; "personal" is not. When a statute does not define a term, the Court typically "give[s] the phrase its ordinary meaning" and "personal" ordinarily refers to individuals. In fact, "personal" is often used to mean precisely the opposite of business-related. In the words of Chief Justice Roberts, "certainly, if the chief executive officer of a corporation approached the chief financial officer and said, ‘I have something personal to tell you,' we would not assume the CEO was about to discuss company business."
According to the Court, the meaning of "personal privacy" in Exemption 7(C) is further clarified by two pre-existing FOIA exemptions. Exemption 6, which Congress enacted eight years before Exemption 7(C), covers "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." The Court has regularly referred to Exemption 6 as involving an "individual's right of privacy." In contrast, FOIA Exemption 4, which protects -as already noted- "trade secrets" clearly applies to corporations. So, writes the Chief Justice, at the time Congress enacted Exemption 7(C), it had in place an exemption that plainly covered a corporation's commercial and financial information, and another that we have described as relating to "individuals." The language of Exemption 7(C) tracks the latter.
According to a piece that appeared in today's Washington Post (available here), "the outcome was notable for its unanimity, especially in view of recent criticism from liberal interest groups that the court tilts too far in favor of business."
As Chief Justice Roberts concluded, "[w]e trust that AT&T will not take it personally."
According to a press release that came out today, the European Ombudsman, P. Nikiforos Diamandouros, has invited citizens, interest groups, and other organizations to submit comments on a draft statement of principles that should guide the conduct of EU civil servants. The draft "public service principles" take account of best practice in the Member States, established through a consultation with the European Network of Ombudsmen. Comments can be submitted until 15 May 2011 and will be considered before the principles are finalized.
Explaining the reasons for proposing a statement of public service principles the Ombudsman writes: "The statement has been drafted with a view to making clear certain fundamental values, which the behaviour of EU civil servants should reflect. By setting out those values clearly, the statement aims to promote citizens' trust in the European civil service and the EU institutions that it serves. The draft statement is intended to complement existing instruments, including the Staff Regulations, the Financial Regulation, and the European Code of Good Administrative Behaviour, which contain general rules and principles governing the behaviour of civil servants. It will help civil servants to focus on the spirit in which they should apply the detailed internal rules of EU institutions governing matters such as the acceptance of gifts and conflicts of interest. It will thus promote good administration and make maladministration less likely to occur."
The draft publicized for consultation is not very long; it enunciates the following public service principles that should guide EU civil servants: commitment to the EU and its citizens, integrity, objectivity, respect for others, and transparency.
More information on the public consultation, including links to the report on the consultation of national ombudsmen is available here.
The UK Human Rights Blog brought to our attention an interesting development in the UK. On February 11, 2011, the Coalition Government published the Protection of Freedoms Bill that has become the first proposed law to be opened to public comments via the internet on this website.
One of the commitments in the Political Reform section of the Coalition's Programme for Government was to "introduce a new ‘public reading stage' for bills to give the public an opportunity to comment on proposed legislation online." This website is a pilot version of that commitment to garner comments from the public on bills as they pass through Parliament. It gives citizens the opportunity to comment on each clause contained in the Bill until March 7, 2011. The comments will get collated at the end of this public consultation and fed through directly to the Parliamentarians who will carry the Bill through the House of Commons.
The website is simple to navigate and intuitive to use. One of the features that I found interesting is a link to a 90-page explanatory note (available here). This note provides a summary and the background of the bill to help users' understanding of it before they submit their comments.
As the UK Human Rights Blog points out, "[p]ublic consultations on government bills are nothing new. ... But whilst fully considered and expert responses to consultations must continue, the comments system for the new Protection of Freedoms bill serves a subtly different purpose. It deploys the familiar style of website comments to encourage quick and focused responses to specific provisions. And these comments can quickly become a debate between commenters, providing an iterative response which, if constructive, can arrive at the best answer quickly."
I think the latter element is indeed worth emphasizing as it distinguishes this process from other consultation practices that simply publish a summary of responses when the legal text is finally promulgated. Being able to follow the flow of comments as they come in (note: the comments are subject to this moderation policy) encourages debate among citizens arguably enhancing the deliberative quality of the enterprise.
The impact of this interactive process on the final legal text remains to be seen. At any rate, it should also be interesting to see how this first experience will be used in the elaboration of further bills in the future.
Today, President Obama signed an Executive Order (the text of which is available here) outlining his regulatory strategy. This Executive Order "is supplemental to and reaffirms the principles, structures, and definitions governing contemporary regulatory review that were established in Executive Order 12866 of September 30, 1993" that was signed by Bill Clinton.
Today's Executive Order enunciates the following general principles of regulation: "Our regulatory system must protect public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation. It must be based on the best available science. It must allow for public participation and an open exchange of ideas. It must promote predictability and reduce uncertainty. It must identify and use the best, most innovative, and least burdensome tools for achieving regulatory ends. It must take into account benefits and costs, both quantitative and qualitative. It must ensure that regulations are accessible, consistent, written in plain language, and easy to understand. It must measure, and seek to improve, the actual results of regulatory requirements."
President Obama also describes his approach to regulation in an op-ed in today's Wall Street Journal (Barack Obama, Toward a 21st-Century Regulatory System). According to this op-ed, over the past two years the goal of the administration has been to "strike the right balance": ensure proper oversight and transparency while not placing unreasonable burdens on business-burdens that might stifle innovation and have a chilling effect on growth and jobs. Obama then suggests that creating a 21st-century regulatory system is about more than which rules to add and which rules to subtract: "As the executive order I am signing makes clear, we are seeking more affordable, less intrusive means to achieve the same ends-giving careful consideration to benefits and costs. This means writing rules with more input from experts, businesses and ordinary citizens. It means using disclosure as a tool to inform consumers of their choices, rather than restricting those choices. And it means making sure the government does more of its work online, just like companies are doing. We're also getting rid of absurd and unnecessary paperwork requirements that waste time and money. ... And finally, today I am directing federal agencies to do more to account for-and reduce-the burdens regulations may place on small businesses."
Consistent with this presentation, the basic prongs of the regulatory strategy as detailed in the Executive Order are:
- Public participation.
- Greater coordination across agencies to reduce costs, simplify and harmonize rules and promote innovation.
- Flexibility and freedom of choice for the public.
- Objectivity of any scientific and technological information and processes used to support the agency's regulatory actions.
- Retrospective analyses of existing rules that may be outmoded, ineffective, insufficient, or excessively burdensome.
Furthermore, as part of the immediate implementation of this regulatory strategy, President Obama also issued a memorandum to the heads of Executive Agencies and Departments calling for more transparency and accountability in regulatory compliance, as well as a memorandum emphasizing the need to reduce burdens on small businesses whenever possible. Further information and links to these texts can be found here.
This is to announce the publication of the edited volume
based on the conference on Comparative Administrative Law that Professors Susan
Rose-Ackerman and Peter Lindseth organized at Yale Law School in May 2009.
The chapters in this book represent a broad, multi-method approach
combining perspectives from history and social science with more strictly legal
analyses. Comparisons of the United States, continental Europe, and the British
Commonwealth are complemented by contributions that focus on Latin America,
Africa, and Asia. The work aims to stimulate comparative research on public
law, reaching across countries and scholarly disciplines.
Beginning with historical reflections on the emergence of administrative
law over the last two centuries, the volume then turns to the relationship of
administrative and constitutional law, with an additional section focusing on
the key issue of administrative independence. Two further sections highlight the
possible tensions between impartial expertise and public accountability,
drawing insights from economics and political science as well as law. The final
section considers the changing boundaries of the administrative state - both
the public-private distinction and the links between domestic and transnational
regulatory bodies such as the European Union. In covering this broad range of
topics, the book illuminates a core concern of administrative law: the way
individuals and organizations across different systems test and challenge the
legitimacy of public authority.
You can find a flyer for the book with the table of contents
here. The direct link to the book on Elgar's website is here. Right now the book is only available in hard cover. A paperback will be
published in the fall of 2011 at a much more affordable price.
The recent Free Enterprise Fund v. Public Company Accounting Oversight Board decision of the United States Supreme Court (see an earlier blog post on this case available here) gives a wonderful occasion to show a major difference between this country and Europe (Germany excepted but maybe not for long) on the question of the amount of independence a legislator (whether at the European or domestic level) can give to an administrative body. We will first review the French constitutional case law and afterwards the European one to show how things are different on the other side of the Atlantic.
It is curious to see first how constitutional provisions are close in France and the US. The US Constitution provides that the President "shall take Care that the Laws be faithfully executed". The French one is even clearer although the control over the administration is not vested in the President but in the Government. On the one hand, Article 20 of the French Constitution says that the Government "shall have at its disposal the civil service", this provision could be interpreted as requiring a power of removal. And on the other hand, article 21 provides that the Prime Minister "shall ensure the implementation of legislation". The last provision is very close to the American one.
However, the case law on the independence of regulatory authorities is very different. The Constitutional Court has not prevented Parliament from insulating these authorities from the power of ministers. Consequently members of regulatory authorities are not removable at all and ministers cannot give them directions. In this respect the independence per se is not a constitutional problem in France, as it is in the US or in Germany. The only barrier Parliament cannot cross is about the amount of regulatory power it gives them. The Court has held that as the regulatory power is vested in the government, Parliament can only give a residual regulatory power to independent authorities.
Having this in mind, the ECJ case law is completely different. The ECJ has, in fact, not prevented but on the contrary required member states to create independent bodies in some circumstances. Competition law is at the very heart of the Court's solutions. The seminal case in this respect is Italian Republic v Commission of the European Communities (20 March, 1985, Case 41/83). In this case, the ECJ held that it was an abuse of a dominant position for British Telecom to use regulatory powers in order to close a market: "1. the management, by an undertaking having the status of a nationalized industry, of public telecommunication equipment and its placing of such equipment at the disposal of users on payment of a fee amounts to a business activity which as such is subject to the obligations imposed by article 86 of the treaty. Comprised within that activity, and therefore subject to review in the light of article 86 of the treaty, is the autonomous exercise of rule-making powers strictly limited to the fixing of tariffs and the conditions under which services are provided for users". Then the Court concludes that "an undertaking holding a statutory monopoly on the management of telecommunications networks infringes article 86 of the treaty when it prohibits the activities of private message-forwarding agencies handling international telecommunication traffic".
The case is the foundation in EC law of the independence of regulatory authorities in network industries. In countries where States still owned public utilities, the opening of the market required member States to create autonomous bodies, insulated from the State so that the regulation can be unbiased. Conversely, countries where States did not own incumbent companies did not have to give the regulatory powers to an independent body. This is the spirit of the directives liberalizing network industries. The idea was to make the regulation impartial and it was competition law that generated this change.
Recent case law in other fields can also show the amount of independence EC law requires as well as the tensions EC law creates in member States. In European Commission v Federal Republic of Germany (9 March 2010, Case C-518/07), the ECJ held that by "making the authorities responsible for monitoring the processing of personal data outside the public sector in the different Länder subject to State oversight, and by thus incorrectly transposing the requirement of ‘complete independence' of the supervisory authorities responsible for ensuring the protection of that data, the Federal Republic of Germany has failed to fulfil its obligations under the second subparagraph of Article 28(1) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data" (see also an earlier blog post on this case available here).
Germany pleaded that State scrutiny could be allowed according to the principle of democracy enshrined not only in the German basic law but also in Article 6(1) EU. The ECJ notes that this principle is "one of the foundations of the European Union". Consequently "As one of the principles common to the Member States, it must be taken into consideration when interpreting acts of secondary law such as Article 28 of Directive 95/46".
Nonetheless, the ECJ gives this principle a completely different meaning. It is interesting to follow very closely its demonstration. What the Court says in essence is that the principle of democracy is respected by the fact that these authorities have to abide by the law established (democratically) by Parliament: "The existence and conditions of operation of such authorities are, in the Member States, regulated by the law or even, in certain States, by the Constitution and those authorities are required to comply with the law subject to the review of the competent courts". The Court accepts that there should be parliamentary influence through the various rules of appointment or accountability (a member State may impose an obligation to report to Parliament) but it seems that the principle of democracy is complied with by the fact that the decisions of these bodies are subject to review.
In conclusion, the ECJ has a completely different understanding of the notion of democracy. Whereas in Germany this notion implies direct control from the State, to the ECJ, this principle is complied with mainly thanks to judicial review. Therefore it is the legal process of judicial review that makes these bodies democratic and not the hierarchical control of the Government.
One last evolution of EC law should be mentioned. In the last directives, both in the field of electronic communications and energy, the Commission shows a will to change the requirement of independence. Whereas, as we said, this requirement meant only regulatory impartiality in circumstances when the State was both an undertaking and a regulator, now the directives impose this independence irrespective of the fact that the State is or is not operating on the market.
What conclusion can we draw from these developments? First, the amount of independence of regulatory authorities in Europe seems much more important. EC law requires independence whereas American constitutional law seems to hinder Congress' will to give independence to these bodies. Also, the tension in Europe between the German and the European conceptions of democracy seems very strong and could maybe hinder the implementation of future directives in this country. It is also possible to say that community law, through these cases, develops a completely new conception of democratic legitimacy, where judicial review seems more important than governmental accountability.
The Freedom of Information Act (FOIA), 5 U.S.C. § 552, allows citizens to access government documents unless one of nine numerated exemptions applies. Exemption 2 [5 U.S.C. § 552(b)(2)] exempts from disclosure records "related solely to the internal personnel rules and practices of an agency." In this case, petitioner Glen Milner requested maps showing how far an explosion would travel from the U.S. Navy's Magazine Indian Island into the surrounding public waters, property and community. The Navy refused to release the maps although it did disclose most of the requested documents to Milner. The district court granted summary judgment in favor of the Navy.
On appeal, the Ninth Circuit affirmed. More specifically, the court explained that there are two categories of information that may fall within Exemption 2's ambit-"Low 2" and "High 2." Low 2 materials include rules and practices regarding mundane employment matters such as parking facilities, lunch hours, and sick leave, which are not of "genuine and significant public interest" (See Dep't of the Air Force v. Rose, 425 U.S. 352, 363). The High 2 exemption protects more sensitive government information. This category applies to "internal personnel rules and practices," disclosure of which "may risk circumvention of agency regulation." Only the High 2 category is at issue here. As to the latter, the Ninth Circuit adopted the standard enunciated in Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051 (D.C. Cir. 1981) (en banc) and held that a personnel document is exempt as "High 2" if it is predominantly internal and its disclosure presents a risk of circumvention of agency regulation. It concluded that the documents requested in the case at hand are predominantly internal and their disclosure would present a serious risk of circumvention of the law as they "point out the best target for those bent on wreaking havoc."
Milner filed a petition for certiorari, which the Supreme Court granted and the case came on for oral argument before the Court yesterday. The transcript of the oral argument is available here.
Counsel for the petitioner began by making the following points: "First, the plain language of Exemption 2 dictates an extremely narrow category of materials, those related solely to internal personnel policies and rules. Second, even if you look beyond the plain language and look to the legislative history, the legislative history is focused, and the additional legislative history from the House is focused, only on law enforcement or investigatory materials, items that were covered through the 1986 amendments to FOIA, making any additional judicial High 2 unnecessary. The third point: Because of FOIA's purpose, if you find that the language, the plain language, is not clear or if you find that the legislative history isn't sufficient, then the focus must be on an interpretation that supports disclosure, not secrecy. And finally, Congress in enacting FOIA conducted the balancing. It reserved for it, itself, the authority to add to or expand FOIA through Exemption 3. It did not leave agency discretion available for the agencies to decide what documents they can provide or not."
Counsel for the respondent replied that the petitioner "has asked this Court to disrupt 30 years of FOIA practice by rejecting an interpretation of Exemption 2 that has prevailed and has provided a workable standard for agencies and the courts since the D.C. Circuit's en banc decision in Crooker."
The Associated Press, which was among the 20 news media organizations that filed a brief urging the court to limit the government's invocation of the personnel exemption, highlighted some interesting aspects of the oral argument (Mark Sherman, High court questions broad use of FOIA exemption): For example, Chief Justice John Roberts said the administration was asking the court "to torture the language in FOIA" to keep the documents from being made public. Roberts also noted the public's frustration with FOIA, even when the government is willing to turn over material. "It takes forever to get the documents," he said. Several other justices indicated that they also thought the government and several appeals courts that have dealt with FOIA lawsuits have interpreted the exception too broadly. Justices Samuel Alito and Stephen Breyer appeared most sympathetic to the government's view.
More information on the case, including links to briefs, is available here.
A piece in today's Wall Street Journal (Ianthe Jeanne Dugan, In California, a Road to Recovery Stirs Unrest) describes the legal challenge against the new highway to the Golden Gate Bridge from San Francisco. This $1 billion project is a public-private partnership with foreign investors under a new law that allows private firms to build public roads in California. California is to give the foreign investors a lump sum when the project is completed, scheduled for 2014, and pay off the rest over 30 years, saving the cost of selling bonds for the already cash-strapped state.
According to the article, a union representing 9,000 public workers brought the suit in State Superior Court in November claiming that state and county transportation agencies are "illegally proceeding with a public-private partnership." The suit is asking the court to force the state to put the project up for bid and stop work in the meantime. While the case awaits a hearing, construction is proceeding. Professor Michael Likosky, quoted in the article, explains that this case holds ramifications for similar projects around the country.
At a time when cities and states struggle financially, public-private partnerships (instead of traditional public procurement processes) might offer a solution to financing very costly infrastructure projects. However, this case brings to the fore the question of the limits of this approach.
Sciences Po organizes a workshop on Impact Assessments that will bring together scholars in law and economics from the U.S. and Europe. The workshop will take place on November 24, 2010, in Paris. For more information, please see the invitation attached here (Invitation-Impact Assessments.pdf).
There has been a lot of coverage in the press and the blogosphere of President Obama's appointment of Professor Elizabeth Warren as special adviser to the White House to oversee the development of the new Consumer Financial Protection Bureau (for one example of the many articles on this appointment, see this piece published in the New York Times).
In a recent op-ed published in the Wall Street Journal ("Obama, Warren and The Imperial Presidency") Professor Bruce Ackerman points to the fact that it is increasingly the case that White House appointees are exempted from the Constitution's requirement of "advice and consent" from the Senate (an earlier post on this blog on these White House czars is available here). This was achieved through the "legal fiction that they were merely advisers without decision-making powers." As Ackerman notes, the trick in this case was to give Prof. Warren a second appointment. In addition to serving as President Obama's special assistant, she will also serve as a special adviser to Treasury Secretary Timothy Geithner thus not requiring Senate confirmation.
Ackerman describes this development as President Obama's "contribution to the ongoing construction of an imperial presidency." At the same time Ackerman acknowledges that, in the existing system, senators have the power to hold up nominations to blackmail the administration into approving their pet projects. His recommendation to break through this impasse is that both sides negotiate a "grand bargain": The Senate should change its rules to require an up-or-down vote on all executive branch appointments within 60 days. In exchange, the President should sign legislation to require Senate approval of all senior White House appointments. By reaching this agreement, the President regains the powers to govern effectively and the Senate regains its authority to approve all major appointments-regardless of their location in the executive branch.
One of the difficult administrative law questions facing most legal systems today is the tradeoff between independence and accountability. Last Monday, June 28, the US Supreme Court handed down a 5-4 decision in the case of Free Enterprise Fund v. Public Company Accounting Oversight Board that highlights this tension.
We first posted about the oral argument in this case a few months ago here. The Public Company Accounting Oversight Board (hereafter "Board") was created as part of a series of accounting reforms in the Sarbanes-Oxley Act of 2002. The Board is composed of five members appointed by the Securities and Exchange Commission (SEC). While the SEC has oversight of the Board, it cannot remove Board members at will, but only "for good cause shown," "in accordance with" specified procedures. According to the majority opinion written by Chief Justice Roberts, the parties also agree that the Commissioners, in turn, cannot themselves be removed by the President except for "inefficiency, neglect of duty, or malfeasance in office" (although the dissenting opinion written by Justice Breyer argues that the Court, by assumption, reads into the statute books a "for cause removal" phrase that does not appear in the relevant statute and which Congress probably did not intend to write). For the purposes of this post, the most interesting argument of the petitioners was that the Sarbanes-Oxley Act contravened the separation of powers by conferring executive power on Board members without subjecting them to Presidential control. One of the bases for the constitutional challenge was that Board members were insulated from Presidential control by two layers of tenure protection: Board members could only be removed by the SEC for good cause, and the Commissioners could in turn only be removed by the President for good cause.
The Court held that the dual for-cause limitations on the removal of Board members contravene the Constitution's separation of powers. It noted that where the Supreme Court had upheld limited restrictions on the President's removal power, only one level of protected tenure separated the President from an officer exercising executive power. The President -or a subordinate he could remove at will- decided whether the officer's conduct merited removal under the good-cause standard. Here, the Act not only protects Board members from removal except for good cause, but withdraws from the President any decision on whether that good cause exists. That decision is vested in other tenured officers -the Commissioners- who are not subject to the President's direct control. Because the SEC cannot remove a Board member at will, the President cannot hold the Commission fully accountable for the Board's conduct. He can only review the Commissioners' determination of whether the Act's rigorous good-cause standard is met. And if the President disagrees with that determination, he is powerless to intervene -unless the determination is so unreasonable as to constitute "inefficiency, neglect of duty, or malfeasance in office." This arrangement, according to the majority opinion, contradicts Article II's vesting of the executive power in the President. As the Chief Justice wrote, "the diffusion of power carries with it a diffusion of accountability. . . . Without a clear and effective chain of command, the public cannot determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures ought really to fall" (internal citations omitted). At another point, the majority continues: "if allowed to stand, this dispersion of responsibility could be multiplied. If Congress can shelter the bureaucracy behind two layers of good-cause tenure, why not a third? At oral argument, the Government was unwilling to concede that even five layers between the President and the Board would be too many. The officers of such an agency -safely encased within a Matryoshka doll of tenure protections- would be immune from Presidential oversight, even as they exercised power in the people's name." However, the Court found that the unconstitutional tenure provisions are severable from the remainder of the statute.
This decision is interesting not just because of its holding but also because it points to Chief Justice Roberts' and Justice Breyer's different views of the administrative state reflecting the tension between independence (as a safeguard for agency expert decisionmaking) and political accountability that we identified in the title of the post. As the Chief Justice writes, "[o]ne can have a government that functions without being ruled by functionaries, and a government that benefits from expertise without being ruled by experts. Our Constitution was adopted to enable the people to govern themselves, through their elected leaders. The growth of the Executive Branch, which now wields vast power and touches almost every aspect of daily life, heightens the concern that it may slip from the Executive's control, and thus from that of the people. This concern is largely absent from the dissent's paean to the administrative state."
On the contrary, Justice Breyer notes that the legal question before the Court arises at the intersection of two general constitutional principles: on the one hand, Congress has broad authority to create governmental offices and to structure those offices as it chooses; on the other hand, under the Constitution the President "shall take Care that the Laws be faithfully executed." The same opinion explains that no text, no history, perhaps no precedent provides any clear answer. Therefore, it is important to examine how a particular provision, taken in context, is likely to function. According to Justice Breyer, the functional approach recognizes today's administrative complexity and, more importantly, recognizes the various ways presidential power operates within this context -and the various ways in which a removal provision might affect that power. It also indicates that judges should hesitate before second-guessing a "for cause" decision made by the other branches because, compared to Congress and the President, the judiciary possesses an inferior understanding of the realities of administration, and the manner in which power, including and most especially political power, operates in context. In the case at hand, as the dissenting opinion argues, "Congress and the President had good reason for enacting the challenged ‘for cause' provision. First and foremost, the Board adjudicates cases. This Court has long recognized the appropriateness of using ‘for cause' provisions to protect the personal independence of those who even only sometimes engage in adjudicatory functions. . . . Moreover, in addition to their adjudicative functions, the Accounting Board members supervise, and are themselves, technical professional experts. . . . Here, the justification for insulating the ‘technical experts' on the Board from fear of losing their jobs due to political influence is particularly strong."
As to the future implications of this case, Breyer's dissent identifies 48 federal agencies whose heads are by statute removable only "for cause." In those agencies there are 573 senior officials (just below the top) who themselves are removable only "for cause" and are therefore under this Court's decision subject to constitutional challenges. The bigger question is whether in the future the Court's conservative wing would be willing to go beyond today's prohibition of the two layers of tenure protection and challenge more broadly any limitations on the President's authority to remove agency officials at will. Such limitations were sustained in cases, such as Humphrey's Executor (1935). At this point the five-member majority does not seem to explicitly contemplate overturning these precedents ("[t]he parties do not ask us to reexamine any of these precedents, and we do not do so"). However, the institutional manifestations of this tension between independence and accountability are worth keeping an eye on in the future.
The European Ombudsman, P. Nikiforos Diamandouros, gave a talk on the role of Ombudsmen in promoting and protecting human rights. This was part of the European Union Agency for Fundamental Rights Symposium on "Strengthening the fundamental rights architecture in the EU" that took place on May 7, 2010.
In that speech Dr. Diamandouros notes that "the ombudsman has proved to be a very flexible institution. It has been prudently adapted to different legal, political and cultural environments throughout the world. Some national ombudsmen have been established with a specific mandate for human rights. Many others deal with human rights issues as part of a general mandate to supervise the public administration."
To use terminology that might sound familiar (especially to Europeans) we could say that certain Ombudsmen focus more on 'objective legality' (i.e., on whether the administration acts within the confines of its powers) while the mandate or practice of other Ombudsmen emphasizes 'subjective legality' (i.e., the rights of citizens affected by the action of an official). That said, it might be difficult to cleanly separate the two notions of legality given that certain Ombudsmen might have a double mandate or because, in practice, one type of legality can be achieved by safeguarding the other.
An example would actually be the case of the European Ombudsman itself. As Dr. Diamandouros indicates: "Article 228 of the Treaty on the Functioning of the European Union empowers [the European Ombudsman] to investigate complaints about maladministration in the activities of the Union institutions, bodies, offices, or agencies. From the very beginning of the European Ombudsman's activity, the term 'maladministration' has been interpreted broadly and in a manner that makes it possible to include respect for the rule of law, for principles of good administration, and for fundamental rights in the Ombudsman's remit. This means that allegations that the institutions have breached a fundamental right fall within [its] mandate."
According to the European Ombudsman, however, in practice, few of the complaints that he receives allege violation of human rights. "That is mainly because the EU organs do not exercise the classic coercive powers of the State. There are no Union prisons, for example. ... Nonetheless, the European Ombudsman has dealt with complaints raising a wide range of human rights issues, including age and race discrimination, the principle of presumption of innocence, the rights of children, and the rights to a fair procedure, freedom of speech of EU officials, privacy and health."
This highlights the importance of national Ombudsmen since they are competent to deal with complaints against public authorities of the Member States. Furthermore, as the European Ombudsman points out, "national ombudsmen enjoy a wide range of competences. Some Ombudsmen, especially those created after the collapse of the communist regimes in Europe, are Human Rights Ombudsmen/Defenders or Commissioners (depending on the different terms used in each instance), that is, they have a special mission to protect and promote human rights. Indeed, in countries where democracy and the rule of law were recently established, it is not rare for national legislators to extend the ombudsman's scope of action beyond individual administrative acts. [For example,] the Portuguese Provider of Justice and the Spanish Defender of the People can bring an action to the Constitutional Court, to determine the constitutionality of a law. A Commissioner for Civil Rights Protection was enacted in Poland in 1987 and was empowered to seize directly the Constitutional Tribunal and ask for the nullification of laws."
Last, Dr. Diamandouros refers to potential future developments on the basis of the right to good administration protected by Article 41 of the Charter of Fundamental Rights (which is binding after the entry into force of the Lisbon Treaty). In his words, "it is true that the scope of Article 41 is limited to the EU Institutions and bodies. However, it is perhaps not yet sufficiently appreciated that the case law of the Court of Justice on which Article 41 is based, concerns general principles of EU law. It is, therefore, also binding on the public authorities of the Member States, when they are acting within the scope of EU law. In that sense and to that extent, citizens and residents of the Union are already entitled to the same right to good administration vis-à-vis administrative authorities in the Member States as vis-à-vis the EU institutions and bodies."
There is an article on the European Parliament (EP) website today (available here) examining the impact of the Lisbon Treaty on comitology. Until now the European Commission's implementation of much EU legislation was overseen by committees of Member State experts, through the so-called "comitology" system, which was criticized for its lack of transparency and democratic oversight. The Lisbon Treaty will replace comitology with "delegated acts," which come under parliamentary control.
With "delegated acts" the European Commission will be able to set out the technical requirements flowing from EU law, provided they don't affect the "core" legislation decided by Parliament and the Council. The delegation of power to the Commission will be subject to limits, conditions and controls. According to Article 290 of the Treaty on the Functioning of the European Union (TFEU),
"1. A legislative act may delegate to the Commission the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act. The objectives, content, scope and duration of the delegation of power shall be explicitly defined in the legislative acts. The essential elements of an area shall be reserved for the legislative act and accordingly shall not be the subject of a delegation of power.
2. Legislative acts shall explicitly lay down the conditions to which the delegation is subject; these conditions may be as follows:
(a) the European Parliament or the Council may decide to revoke the delegation;
(b) the delegated act may enter into force only if no objection has been expressed by the European Parliament or the Council within a period set by the legislative act.
For the purposes of (a) and (b), the European Parliament shall act by a majority of its component members, and the Council by a qualified majority.
3. The adjective "delegated" shall be inserted in the title of delegated acts."
The precise legal framework of the EP's role in delegated powers is still under discussion. On March 23, 2010, the EP's Legal Affairs Committee unanimously stated its position on how this delegation of powers should be carried out, the conditions and the limits, and ways to supervise the Commission's use of those powers. According to the MEPs, the goals, content, scope and duration of each case of delegation must be "expressly and meticulously" defined in each act (regulation, directive or decision). The ways to control the use of delegated powers by the Commission, the EP's right of objection and revocation, the duration and renewal of a delegation and a need for a Common Understanding between the institutions on certain practical arrangements are also some of the issues dealt with in the Legal Affairs Committee report (see the press release here). The report will be discussed in plenary this month.
The European Commission had already published, on December 9, 2009, an interesting Communication to the European Parliament and the Council on the implementation of Article 290 TFEU. The purpose of this Communication was to set out the Commission's views on the scope of the delegated acts, the framework for delegations of power, the working methods the Commission intends to use for preparing the adoption of delegated acts and, finally, the conditions under which the legislator might exercise control over the way the powers conferred on the Commission are implemented. I am attaching the full text of this document here [Communication on delegated legislation.pdf]
Additional background information on comitology and delegated acts (In Q&A form) is available here.
In an article, entitled "White House to seek input on roles of private contractors, federal workers," the Washington Post reports today that the Obama administration will begin seeking formal input from stakeholders on a pair of questions: What kind of tasks should be performed by federal workers, and which ones can be handled by contractors?
According to the newspaper, the Office of Federal Procurement Policy will publish draft guidelines in Wednesday's Federal Register to clarify the definition of "inherently governmental functions," or jobs that should be performed by government workers instead of private contractors. The draft says that such tasks are so directly tied to the public interest that they must be done by government workers.
Those tasks include setting agency policy, hiring workers, awarding contracts and performing other core roles, such as inspectors at the Labor Department or airport security screeners with the Department of Homeland Security.
But the guidelines also seek to define tasks that could be performed by either private- or public-sector workers, such as providing technical assistance to government officials evaluating contracts or managing an agency's information-technology infrastructure.
The administration hopes to have final guidelines by the fall, after hearing from agencies, contractors, federal workers and their unions over the next two months.
The article also quotes representatives of both contracting firms and government employees applauding this initiative.
On March 9, 2010, the European Court of Justice (Grand Chamber) handed down a very interesting judgment regarding the required degree of independence of the authorities responsible for monitoring compliance with Directive 95/46/EC "on the protection of individuals with regard to the processing of personal data and on the free movement of such data" ("Data Protection Directive"). The full text of the judgment is available here.
German law made a distinction depending on whether or not the processing of personal data of individuals was carried out by public bodies. More specifically, there was a difference between the authorities entrusted, on the one hand, with monitoring compliance with the provisions concerning data protection by public bodies and, on the other hand, with monitoring compliance with data protection by non-public bodies and undertakings governed by public law which compete on the market ("outside the public sector"). The processing of data by public bodies was supervised at the federal level by the "Federal representative responsible for the protection of personal data and freedom of information" and, at regional level, by the "representatives responsible for the protection of regional data." Those representatives were solely responsible to their respective parliament and were not normally subject to any scrutiny, instruction or other influence from the public bodies which were the subjects of their supervision. On the other hand, the organization of the authorities responsible for supervising the processing of data by non-public bodies varied among the Länder. However, all the laws at the Länder level expressly subjected those supervisory authorities to State scrutiny.
The Commission requested the Court to declare that, by making the authorities responsible for monitoring the processing of personal data outside the public sector in the different Länder subject to State oversight, and by thus incorrectly transposing the requirement of "complete independence" of the supervisory authorities responsible for ensuring the protection of that data, Germany had failed to fulfill its obligations under the second subparagraph of Article 28(1) of Directive 95/46/EC. Pursuant to this provision, entitled "Supervisory authority",
"(1) Each Member State shall provide that one or more public authorities are responsible for monitoring the application within its territory of the provisions adopted by the Member States pursuant to this Directive.
These authorities shall act with complete independence in exercising the functions entrusted to them."
The question essentially came down to the interpretation of the words "with complete independence" of this provision. The Commission and European Data Protection Supervisor (EDPS) relied on a broad interpretation of this language, construing it to require that a supervising authority must be free from any influence, whether that influence is exercised by other authorities or outside the administration. On the contrary, Germany proposed a narrower interpretation arguing that the Directive required the supervisory authorities to have functional independence in the sense that those authorities must be independent of bodies outside the public sector which are under their supervision and that they must not be exposed to external influences.
The Court stressed that the wording itself of that provision and the aims and scheme of the Directive should be taken into account. First, with regard to the wording, it noted that, because the words ‘with complete independence' are not defined by the Directive, it is necessary to take their usual meaning into account. "In relation to a public body, the term ‘independence' normally means a status which ensures that the body concerned can act completely freely, without taking any instructions or being put under any pressure. Contrary to the position taken by the Federal Republic of Germany, there is nothing to indicate that the requirement of independence concerns exclusively the relationship between the supervisory authorities and the bodies subject to that supervision. On the contrary, the concept of ‘independence' is complemented by the adjective ‘complete', which implies a decision-making power independent of any direct or indirect external influence on the supervisory authority" (paras. 18-19).
Second, with respect to the objectives of the Data Protection Directive, the Court held that "[t]he guarantee of the independence of national supervisory authorities is intended to ensure the effectiveness and reliability of the supervision of compliance with the provisions on protection of individuals with regard to the processing of personal data and must be interpreted in the light of that aim. It was established not to grant a special status to those authorities themselves as well as their agents, but in order to strengthen the protection of individuals and bodies affected by their decisions. It follows that, when carrying out their duties, the supervisory authorities must act objectively and impartially. For that purpose, they must remain free from any external influence, including the direct or indirect influence of the State or the Länder, and not of the influence only of the supervised bodies" (para. 25).
Third, as to the scheme of the Data Protection Directive, the Court added that the latter must be understood as the equivalent of Article 286 EC and Regulation No 45/2001 (concerning the processing of personal data by EU institutions). Directive 95/46 also seeks to achieve those aims, but with regard to the processing of such data within the Member States. "In the same way as supervisory bodies exist at national level, a supervisory body responsible for ensuring the application of the rules on the protection of individuals with regard to the processing of personal data is also provided for at European Community level, namely, the EDPS. In accordance with Article 44(1) of Regulation No 45/2001, that body is to perform its duties in complete independence. Article 44(2) thereof clarifies that concept of independence by adding that, in the performance of its duties, the EDPS may neither seek nor take instructions from anybody. In view of the fact that Article 44 of Regulation No 45/2001 and Article 28 of Directive 95/46 are based on the same general concept, those two provisions should be interpreted homogeneously, so that not only the independence of the EDPS, but also that of the national authorities, involve the lack of any instructions relating to the performance of their duties" (paras. 27-28).
The Court then went on to assess whether the State scrutiny to which the supervisory authorities are subject in Germany is consistent with the requirement of independence as defined above. It found that "the mere risk that the scrutinising authorities could exercise a political influence over the decisions of the supervisory authorities is enough to hinder the latter authorities' independent performance of their tasks. First, as was stated by the Commission, there could be ‘prior compliance' on the part of those authorities in the light of the scrutinising authority's decision-making practice. Secondly, for the purposes of the role adopted by those authorities as guardians of the right to private life, it is necessary that their decisions, and therefore the authorities themselves, remain above any suspicion of partiality" (para. 36).
A last, and perhaps most intriguing, point about this case pertains to the position of independent agencies in the democratic constitutional structure. This is obviously not a novel issue; different legal orders have struggled with the question of the constitutionality of agencies and their democratic legitimacy -or lack thereof. In this case Germany contended that the principle of democracy precludes a broad interpretation of the requirement of independence in a way which would oblige that Member State to renounce its tried and tested system of scrutiny of the supervisory authorities. According to this argument, "that principle [i.e. of democracy], which is enshrined not only in the German constitution, but also in Article 6(1) EU, requires that the administration be subject to the instructions of the government which is accountable to its parliament. Thus, the legality of interventions concerning the rights of citizens and undertakings should be subject to the scrutiny of the competent minister. Since the supervisory authorities ... have certain powers of intervention with regard to citizens and entities outside the public sector, a heightened scrutiny of the legality of their activities by means of instruments for monitoring legality or substance is absolutely necessary" (para. 40).
The Court responded that this "principle does not preclude the existence of public authorities outside the classic hierarchical administration and more or less independent of the government. The existence and conditions of operation of such authorities are, in the Member States, regulated by the law or even, in certain States, by the Constitution and those authorities are required to comply with the law subject to the review of the competent courts. Such independent administrative authorities, as exist moreover in the German judicial system, often have regulatory functions or carry out tasks which must be free from political influence, whilst still being required to comply with the law subject to the review of the competent courts. That is precisely the case with regard to the tasks of the supervisory authorities relating to the protection of data (para. 42). Admittedly, the absence of any parliamentary influence over those authorities is inconceivable. However, it should be pointed out that Directive 95/46 in no way makes such an absence of any parliamentary influence obligatory for the Member States (para. 43). Thus, first, the management of the supervisory authorities may be appointed by the parliament or the government. Secondly, the legislator may define the powers of those authorities (para. 44). Furthermore, the legislator may impose an obligation on the supervisory authorities to report their activities to the parliament. In that regard, a comparison may be made with Article 28(5) of Directive 95/46 which provides that each supervisory authority is to draw up a report on its activities at regular intervals which will then be made public (para. 45). In view of the foregoing, conferring a status independent of the general administration on the supervisory authorities responsible for the protection of individuals with regard to the processing of personal data outside the public sector does not in itself deprive those authorities of their democratic legitimacy (para. 46)."
For these reasons, the Grand Chamber held that Germany had failed to fulfill its obligations under the second subparagraph of Article 28(1) of Directive 95/46.
The Washington Post reports today that federal auditors on Monday put a stop to Army plans to award a $1 billion training program for Afghan police officers to the company formerly known as Blackwater (now Xe Services), concluding that other companies were unfairly excluded from bidding on the job. According to the article, GAO officials upheld a protest by DynCorp International Inc., which currently conducts training for Afghan police under a State Department contract. DynCorp lawyers argued that the company should have been allowed to submit bids when management of the training program passed from State to the Army. Instead, Pentagon officials allowed the training program to be attached to an existing Defense contract that supports counternarcotics efforts in Afghanistan. GAO officials said the decision will allow a new round of bidding by DynCorp and other firms, including Xe Services.
A press statement, including a link to the full decision, is available on the GAO website here.
The Court of Justice of the European Union issued today a press
release with statistics concerning judicial activity in 2009. The press
release is available here.
The ECJ completed 543 cases in 2009, one of the highest numbers in the
Court's history. With respect to the duration of proceedings, in the
case of references for a preliminary ruling, the average duration
amounted to 17.1 months; the average time taken to deal with direct
actions and appeals was 17.1 months and 15.4 months respectively.
568 cases were brought before the General Court (which was called
until November 30, 2009, the Court of First Instance). The results are
mixed as far as the duration of proceedings is concerned. In the case
of appeals, the duration remained at the level recorded in 2008 (16.1
months). Furthermore, the duration of intellectual property proceedings
decreased (from 20.4 months in 2008 to 20.1 months in 2009). However,
the duration increased in cases concerning other areas (from 26 months
in 2008 to 33.1 months in 2009).
As RegBlog reports, the White House recently announced the online
availability of extensive government datasets through Data.gov.
On December 8, 2009, the White House issued the Open Government Directive,
instructing Executive Departments to publish three high-value datasets online
within 45 days. As part of this initiative, the purpose of Data.gov is to
increase the ability of the public to easily find, download, and use datasets
that are generated and held by the Federal Government. Data.gov provides
descriptions of the Federal datasets (metadata), information about how to access
the datasets, and tools that leverage government datasets. The data catalogs
will continue to grow as datasets are added, so this is a website worth keeping
an eye on. Federal, Executive Branch data are included in the first version of
Data.gov also includes a search engine, links to state and local data
sites (available for only four states at the moment), and an interesting page
showing how many times each agency's datasets have been downloaded. At this
point, the Environmental Protection Agency (EPA) has the lead.
The Environmental Protection Agency moved closer Monday to issuing regulations on greenhouse gases, a step that would enable it to limit emissions across the economy even if Congress does not pass climate legislation. According to an article published today (Dec. 8) in the Washington Post (Steven Mufson and David A. Fahrenthold, EPA is preparing to regulate emissions in Congress's stead), "[t]he move, which coincided with the first day of the international climate summit in Copenhagen, seemed timed to reassure delegates there that the United States is committed to reducing its emissions even if domestic legislation remains bogged down. But it provoked condemnation from key Republicans and from U.S. business groups, which vowed to tie up any regulations in litigation.
In Monday's much-anticipated announcement, the Environmental Protection Agency said that six gases, including carbon dioxide and methane, pose a danger to the environment and the health of Americans and that the agency would start drawing up regulations to reduce those emissions.
'These are reasonable, common-sense steps,' EPA Administrator Lisa P. Jackson said, adding that they would protect the environment 'without placing an undue burden on the businesses that make up the better part of our economy.' At the same time, however, EPA regulation is no one's preferred outcome -- not even the EPA's. Jackson said her agency and other administration officials would still prefer if Congress acted before they did". In the same article it is noted that it "remains unclear whether the EPA's regulatory cudgel will spur Congress to take faster action on the climate legislation that is now mired in the Senate or whether it will provoke a backlash."
On April 2, 2007, in Massachusetts v. EPA, 549 U.S. 497 (2007), the U.S. Supreme Court found that greenhouse gases (GHG) are air pollutants covered by the Clean Air Act. The Court held that the Administrator must determine whether or not emissions of greenhouse gases from new motor vehicles cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare, or whether the science is too uncertain to make a reasoned decision.
The EPA's final findings on Monday respond to this decision. "There are no more excuses for delay," Jackson said. "[T]his administration will not ignore science and the law any longer."
The findings do not in and of themselves impose any emission reduction requirements but rather allow the EPA to finalize the GHG standards proposed earlier this year for new light-duty vehicles as part of the joint rulemaking with the Department of Transportation.
Yesterday's announcement is currently available on the EPA's homepage. More information on the endangerment finding is available here.
The Supreme Court heard oral argument on Monday in Free Enterprise Fund v. Public Company Accounting Oversight Board (08-861), an important separation of powers case.
In 2002, Congress passed the Sarbanes-Oxley Act, which created the Public Company Accounting Oversight Board (P.C.A.O.B.) to regulate auditors of public companies. The justices considered yesterday whether Congress had violated separation of powers principles by creating this board. The problem, critics of the law say, is that the board is too insulated from presidential oversight.
According to a New York Times article (Adam Liptak, Court Spars on Oversight of Agencies, N.Y. Times, December 7, 2009) the board is overseen by the Securities and Exchange Commission, itself an independent agency. Under the Sarbanes-Oxley Act, board members are doubly insulated from presidential control. The S.E.C., but not the president, can remove them, and only for cause. One level up, the president can remove S.E.C. commissioners, but again only for cause.
"In other words," Chief Justice Roberts said at the argument, "the president can't remove the S.E.C. commissioners at will. They can't remove the P.C.A.O.B. commissioners at will." The net result, the Chief Justice said, was two layers of insulation - "for-cause squared," he called it. He suggested that Congress had gone too far in telling the executive branch how to conduct its business.
Michael A. Carvin, representing an accounting firm challenging the law, told the justices that "the board is unique among federal regulatory agencies in that the president can neither appoint nor remove its members" and so "is stripped of the traditional means of control that he has over the traditional independent agencies."
The solicitor general, Elena Kagan, urged the Court not to become fixated on the president's removal authority. "Removal is not the ultimate constitutional question," Ms. Kagan said. "The ultimate constitutional question is the level of presidential control." Here, she said, the president has no less control over the board than he has over the S.E.C. itself. She presented this argument as a syllogism. The president, she said, has "constitutionally sufficient control over the S.E.C." The commission, in turn, has "comprehensive control over the accounting board." "Therefore," she said, "the president has constitutionally sufficient control over the accounting board."
According to the same N.Y.T. article, "she faced heavy fire from the court's more conservative justices. ‘Oh, no, no,' Chief Justice Roberts said, ‘because you have an extra layer there.' Justice Alito asked whether five layers of for-cause removal would be constitutional. 'It depends,' Ms. Kagan said.
Given the novel structure of the accounting board, the court may well decide the case on narrow grounds.But the case may also allow the court to address the general question of how much oversight the executive branch must have over independent agencies."
The transcript of the oral argument is available on the Supreme Court's website here. There is also a post on this case on the ScotusBlog here.
Here is a link to a brief interview with Michael Cashman, the British MEP who has been entrusted by the European Parliament with the job of looking at openness and transparency, including access to documents, in the European Union (he describes himself as a "trainspotter for transparency"). At the bottom of the page there are links to texts and developments regarding access to documents in the European Union.
The High Court of Justice in Israel put an end to years of controversy Thursday, November 19, by ruling that privately run prisons are unconstitutional. The full text of this landmark decision is currently only available in Hebrew on the Court's website [here]. I will post the English translation when it becomes available; however, the main reasoning and implications of the case discussed below should be suggestive of its importance.
The panel of nine justices, presided over by Supreme Court President Dorit Beinisch, ruled in an 8-1 decision that a transfer of authority for managing the prison from the state to a private contractor whose aim is monetary profit would severely violate the prisoners' basic human rights to dignity and freedom. (See Tomer Zarchin, International legal precedent: No private prisons in Israel, HAARETZ)
In 2004, the Knesset passed Amendment 28 to the Prisons Ordinance, which permitted the establishment of private prisons in Israel. The state's motivation was to save money by transferring prisoners to facilities managed by a private firm, to be chosen by tender. The state would pay the franchisee $50 per day for each inmate, but would be spared the cost of building new prisons and expanding the Israel Prison Service's staff.
In 2005, the human rights department of the Academic College of Law in Ramat Gan filed a petition to the High Court challenging the amendment. The petition relied on two arguments. First, it said, transferring prison powers to private hands would violate the prisoners' fundamental human rights to liberty and dignity. And second, a private organization always aims to maximize profit, and would therefore seek to cut costs by, for instance, skimping on prison facilities and paying its guards poorly, thus further undermining the prisoners' rights.
President Beinisch held that, while the amendment was passed in part due to a desire to improve prison conditions, the main purpose of the change was economic - namely, to save the state money. Normally, the ruling noted, the court does not intervene in economic policies decided upon by the cabinet and Knesset. But in this case, Beinisch wrote, the legislation harms basic constitutional rights. Thus the amendment's economic aspect is not the decisive factor that the court must weigh in exercising its power of judicial review.
Israel's basic legal principles, she continued, hold that the right to use force in general, and the right to enforce criminal law by putting people behind bars in particular, is one of the most fundamental and one of the most invasive powers in the state's jurisdiction. Thus when the power to incarcerate is transferred to a private corporation whose purpose is making money, the act of depriving a person of his liberty loses much of its legitimacy. Because of this loss of legitimacy, the violation of the prisoner's right to liberty goes beyond the violation entailed in the incarceration itself.
Beinisch also argued that in a prison run by a private company, prisoners' rights are undermined by the fact that the inmates are transformed into a means of extracting profit. Efficiency, she wrote, is not a supreme value when the most basic and important human rights for which the state is responsible are at stake.
The implications of the case
Following the decision, the state is expected to have to pay hundreds of millions of shekels in compensation to a company that had already completed construction of the first private prison, near Be'er Sheva.
Attorney Gilad Barnea, who represented the college, told The Jerusalem Post that "the ruling is very important because it establishes clear boundaries regarding what is permissible and what is not when it comes to transferring functions from the state to private hands. It is also important because the court determined that the social covenant is an important element in human liberty and that the court may overrule legislation that diminishes it."
Barnea added that the ruling set a world-wide precedent. So far, there had been only one other court challenge to the legality of a private prison - in Costa Rica - and the court rejected it. He said he was certain that other countries would study the High Court ruling carefully and that, at least in this sense, "we will be a light unto the nations."
He also said the ruling would have an immediate effect on three other cases involving the state's intention to privatize. One of the cases involves the hiring of private instructors at the police training center. A second involves the hiring of private instructors for the huge army base near Ramat Hovav in the Negev. The third is the government's intention to privatize the Bailiff's Office and the center for collecting fines.
Another article in Haaretz describes the Israeli Supreme Court's decision as dropping a bombshell. According to the article, the bombshell dropped is hidden in one of the ruling's final pages. "Supreme Court President Dorit Beinisch wrote that so far, no American, British or New Zealand court has had to rule on whether privatizing prisons is unconstitutional. But many experts, she noted, have argued that if this question did arise in Europe, it would be rejected out of hand as contrary to the European Convention on Human Rights.
Thus four years after the petition was filed and about a year after the concessionaire finished building the first private prison - where 2,000 prisoners were slated to be sent - Israel's High Court has effected a revolution: It ruled in firm, unequivocal language that the problem is not the nature of the prison or the concessionaire. Rather, it said, the very principle of privatizing prisons is unconstitutional.
The High Court stressed that it was not intervening in the relations between the state and the concessionaire, who hastened to demand massive compensation. Instead, it addressed other aspects of the issue.
This ruling will not only be studied in Israel, it will also doubtless generate a conceptual revolution worldwide. And Beinisch was clearly aware of this. The ruling rests on the political and moral thought of the great philosophers who discussed the modern state and its administration, as well as on the sharp, clear statements Prof. Aharon Barak used in establishing the basis for his constitutional legislation.
The "social welfare" lobby will probably laud the court as moral and humane, and perhaps even socialist. That would be a mistake. Beinisch cites Thomas Hobbes and John Locke, and accompanies every one of her arguments with citations from Barak, who stressed that human rights must not be left in the hands of any legislator."
Last Thursday's judgment comes at the end of a long discussion in Israel about the proper limits on transferring of authority from the state to the private sector that found both supporters and opponents (see, e.g., this Roundtable Forum held at the Israel Democracy Institute) and skepticism in the academic literature (see Uri Timor, Privatization of Prisons In Israel: Gains And Risks, 39 Israel Law Review 81 (2006)); it will probably spur a new round of debates not just in Israel but in other jurisdictions facing the same question.
According to another news item, "prison privatization first came up for discussion [in Israel] in the 90's, when prisons were so overcrowded and badly maintained that they seemed unfit for habitation. The following years saw no improvement. In 2005, the Israel Prison Service (IPS) reported that because of overcrowding, conditions were among the worst in developed countries, with up to eight prisoners in a cell and with many having to sleep on the floor. As of March 2008, there were 22,788 inmates, including 9,068 security prisoners. The average space allotted to a prisoner has dropped in recent years from 3.4 square meters to 2.9. By comparison, the figure in Europe is 4.5 square meters. ... According to the Ministry of Public Security (MOPS), Israel [would be] following the "British model," where the "entrepreneur constructs and operates all systems, including bearing responsibility for the fulfillment of prisoners' rights." The state [would retain] supervision and control by "placing in every privately-run facility a comptroller or team of comptrollers who alone exercise the authority to judge and punish prisoners." (The "US model" goes further, giving private companies the power to judge and punish, while the "French model" is more cautious, keeping security and prison management in state hands.) MOPS [said] that the state [would] retain sole responsibility for classifying and allocating prisoners to the private facility, plus punishment and sentencing."
In the United States, the issue was brought to the fore again when Arizona initiated an effort to put its entire prison system under private control (Jennifer Steinhauer, Arizona May Put State Prisons in Private Hands, The New York Times, October 24, 2009). "[I]n a first in the criminal justice world, the state's death row inmates could become the responsibility of a private company." According to the same article, "[t]he privatization move has raised questions - including among some people who work for private prison companies - about the private sector's ability to handle the state's most hardened criminals. While executions would still be performed by the state, officials said, the Department of Corrections would relinquish all other day-to-day operations to the private operator and pay a per-diem fee for each prisoner."
The privatization of state prisons in the U.S. is part of an effort to balance budgets in view of dwindling state resources. The Israeli Supreme Court took a different path when it reviewed the privatization amendment whose rationale was likewise cutting costs. As President Beinisch wrote, while the High Court usually does not interfere in economic policies formulated by the government and Knesset, it takes a different approach in respect to legislation that undermines the most fundamental constitutional rights.
The applicant, Patricia Chaudet, is a French national who worked as an air hostess from 1982. Between 1997 and 2001 she suffered five work-related accidents as a result of air turbulence. She was awarded a disability pension in June 2002 (for a degree of disablement of 8%), then given disabled-worker status in April 2003. On 30 April 2003 the civil aviation medical council declared her unfit for the duties of an air hostess (without giving reasons for its decision); then, on 12 May 2004, declared her permanently unfit for such duties. On 25 October 2004 the civil aviation medical board declared that this permanent incapacity was not attributable to the airline, thus depriving the applicant of the right to receive compensation in that respect. After an unsuccessful application for review, Ms. Chaudet challenged that decision before the Conseil d'Etat, considering, in particular, that insufficient reasons had been given for it. The Conseil d'Etat dismissed the appeal; it held, in particular, that sufficient reasons had been given for the disputed decision, in view of the legal requirement to respect medical confidentiality.
The civil aviation medical board is a collegial body governed by the Code of Civil Aviation. It forms part of the Ministry of Transport and is made up of doctors who are appointed by the Minister. It studies and coordinates physiological, medical, medico-social and health issues of interest to civil aviation, particularly with regard to flight personnel and passengers. It rules, among other things, on the permanent nature of airline employees' medical incapacity and takes decisions on the attribution of accidents at work.
Complaint before the ECHR
Ms. Chaudet relied essentially on Article 6 § 1 of the Convention (right to a fair hearing). She complained of the unfair nature of the proceedings before the civil aviation medical board, on account of the inadequacy of the reasons given for its decision, and about the fact that it had been impossible for her to have access to the case file on which the decision had been based. She also complained about the presence of the Government Commissioner at the deliberations of the bench of the Conseil d'Etat which ruled on her case.
Decision of the ECHR
On the fairness of the proceedings before the civil aviation medical board
Ms. Chaudet was entitled to have her claims examined by a tribunal which met the requirements of Article 6§1, since they were genuinely aimed at obtaining payment of compensation provided for by law.
The Court did not consider it necessary to examine whether the civil aviation medical board met the requirements of Article 6§1. In contrast, it was obliged to ensure that the Conseil d'Etat satisfied the applicant's right to a court and to determination of the dispute by a court. In this case, the Conseil d'Etat did not have "full jurisdiction", which would have had the effect of substituting its decision for that of the civil aviation medical board. It had nonetheless addressed all of the submissions made by the applicant, on factual and legal grounds, and assessed all of the evidence in the medical file, having regard to the conclusions of all the medical reports discussed before it by the parties.
The applicant's case had thus been examined in compliance with the requirements of this Article and the Court concluded (unanimously) that there had been no violation of Article 6§1.
On the presence of the Government Commissioner at the Conseil d'Etat's deliberations
Reiterating its case-law (Martinie v. France ([GC], no 58675/00, 12 April 2006)) that the presence of the Government Commissioner at the deliberations of the bench of the Conseil d'Etat, as was the situation at the time of the disputed events, was incompatible with the requirements of a fair hearing, the Court concluded (unanimously) that there had been a violation of Article 6 § 1.
The judgment is available only in French here. You can read the press release, which is available in English, here.
According to its website, the Commission recognizes that lobbying is a legitimate, even essential part of democratic decision making, whether it is carried out by public affairs consultancies, private companies, NGOs, law firms, think tanks or trade associations. The Commission needs and appreciates the input it gets from such organizations, but in return asks their cooperation in showing the public that the relationship is based on high standards of probity and transparency.
As part of a wider effort to make EU decision-making more transparent, the Commission launched a register in 2008 that is meant to list all interest representatives - a catch-all term for groups seeking to influence policy. The first annual review of the voluntary scheme found that the number of registered organizations and individuals has reached 2,100 and is rising. The report notes that some supporters of efforts to regulate lobbyists want registration to be mandatory. But it says that is not warranted given the high rate of participation so far. Commissioner Siim Kallas says the register has changed the commission's corporate culture. EU officials now think twice about meeting with unregistered interest representatives. And some EU divisions have dropped unregistered organizations from their database or taken similar steps.
But not everyone is happy with the register. Many law firms and think tanks have boycotted it. Lawyers worry it violates their rules on client confidentiality, while think tanks say their activities do not count as lobbying. The Commission hopes to resolve these issues by clarifying the language in the register and creating a separate category for think tanks. It will also revise the rules for financial disclosure to improve transparency.
More information is available here.
The European Court of Human Rights (a Chamber of seven judges) notified in writing today its judgment in the case of Lombardi Vallauri v. Italy (application no. 39128/05). The Court held that the Catholic University of Milan, which is a public law entity ("personne juridique de droit public"), should have given reasons for refusing to employ a lecturer who had not been approved by the Ecclesiastical authorities; hence, it found a violation of Articles 6 § 1 (right to a fair hearing) and 10 (freedom of expression) of the European Convention on Human Rights.
More specifically, the applicant, Mr. Lombardi Vallauri, is an Italian national who began teaching legal philosophy in 1976 at the Faculty of Law of the Università Cattolica del Sacro Cuore (Catholic University of the Sacred Heart) in Milan, on the basis of contracts renewed on an annual basis. When a competition for the post was advertised for the 1998/99 academic year, he applied. The Congregation for Catholic Education, an institution of the Holy See, informed by a letter the President of the University that some of the applicant's views were "in clear opposition to Catholic doctrine" and that "in the interests of truth and of the well being of students and the University" the applicant should no longer teach there. The University President wrote to the Dean of the Faculty of Law, informing him of the Congregation's position. The Faculty Board took note of the Holy See's position and decided not to examine the applicant's application, since one of the conditions for admission to the competition, namely the approval of the Congregation for Catholic Education, had not been met.
The applicant applied to the Lombardy Regional Administrative Court to have the decisions of the Faculty Board and the ecclesiastical authority set aside. He argued that the decisions in question were unconstitutional because they breached his right to equality, freedom of instruction and freedom of religion. The Regional Administrative Court rejected the application on the grounds, inter alia, that adequate reasons had been given for the Faculty Board's refusal to consider the applicant's candidacy, and that the revised Concordat between the Holy See and the Italian Republic did not lay down any requirement to state the religious grounds for refusing approval. The court further held that neither the Faculty Board nor the court itself had jurisdiction to examine the legitimacy of the Holy See's decision, which had emanated from a foreign State. The court also pointed out that teaching staff were free to choose whether or not to adhere to the principles of the Catholic faith.
Mr. Vallauri then appealed to the Consiglio di Stato reiterating the lack of reasons given for the Faculty Board's decision and contesting the lack of jurisdiction of the administrative court. The Consiglio di Stato dismissed the appeal. It stated that the Italian administrative and judicial authorities could not depart from a Constitutional Court judgment, according to which the fact that teaching appointments at the Catholic University were subject to the approval of the Holy See was compatible with Articles 33 and 19 of the Constitution, which guaranteed freedom of instruction and freedom of religion respectively. The Consiglio di Stato further observed that "no authority in the Republic may rule on the findings of the ecclesiastical authority".
Complaint before the ECHR
Relying on Article 10 of the Convention, Mr Lombardi Vallauri complained that the decision of the Università Cattolica del Sacro Cuore, for which no reasons had been given and which had been taken without any genuine adversarial debate, had breached his right to freedom of expression.
Relying also on Article 6 § 1 of the Convention with regard to the fairness of the proceedings and his right of access to a court, the applicant complained of the domestic courts' failure to rule on the lack of reasons for the Faculty Board's decision, thereby restricting his ability to appeal against that decision and to instigate an adversarial debate. Mr. Lombardo Vallauri also complained of the fact that the Faculty Board had confined itself to taking note of the Congregation's decision, which had also been taken without any adversarial debate.
Decision of the ECHR
The Court considered that, in omitting to explain how the applicant's views, which supposedly ran counter to Catholic doctrine, were liable to affect the University's interests, the Faculty Board had not given adequate reasons for its decision.
The Court went on to observe that, although it was not for the domestic authorities to examine the substance of the Congregation's doctrinal stance, the administrative courts, in the interests of the principle of adversarial debate, should have addressed the lack of reasons for the Faculty Board decision.
In conclusion, the Court considered that the University's interest in dispensing teaching based on Catholic doctrine could not extend to impairing the very substance of the procedural guarantees afforded to the applicant by Article 10 of the Convention. Accordingly, in the particular circumstances of the case, the interference with Mr. Lombardi Vallauri's freedom of expression had not been "necessary in a democratic society". The Court therefore held, by six votes to one, that there had been a violation of Article 10 of the Convention in its procedural aspect.
For the same reasons the Court held that the applicant had not had effective access to a court, and found a violation of Article 6 § 1 by six votes to one.
Washington Post has an article today on President Obama scolding business groups that have fought his plan to create a new federal agency (Consumer Financial Protection Agency) to oversee mortgages, credit cards and other consumer financial products, casting the debate as a battle between his administration and Wall Street.
According to the newspaper, the proposed agency has become the most divisive, partisan element of the administration's wide-ranging plan to overhaul the nation's financial regulatory system. Republicans on congressional committees considering regulatory reform have almost uniformly opposed it. Banks and other financial firms, along with armies of lobbyists, have flooded Capitol Hill carrying the message that the new agency would add an unnecessary layer of government regulation, increase costs, stifle financial innovation and ultimately curtail choices for consumers. Obama disputed that the new agency would restrict consumer choice or limit meaningful innovation. "Nothing could be further from the truth," he said, arguing that "in a financial system that's never been more complicated, it has never been more important to have a watchdog function like the one we've proposed." The House Financial Services Committee plans to edit and vote on the legislation beginning as early as next week.
On the other side of the Atlantic, there are different agencies for consumers of financial products, although they seem to be closer to ombudsmen and, consequently, probably less powerful than the contemplated U.S. agency might prove to be. In the European Union, the European Commission launched in 2001 the Financial Dispute Resolution Network (FIN-NET). FIN-NET is a financial dispute resolution network of national out-of-court complaint schemes in the European Economic Area countries (the European Union Member States plus Iceland, Liechtenstein and Norway) that are responsible for handling disputes between consumers and financial services providers, i.e. banks, insurance companies, investment firms and others. Currently FIN-NET has 46 members from 21 European Economic Area countries. More information about the members can be found here. It would be interesting to hear more about individual country cases. Are agencies entrusted with overseeing financial services in other places part of the respective ministries or independent public bodies? What is the scope of their powers? Do they resemble Ombudsmen or do they also possess regulatory authority?
On October 6, 2009, the Council of the European Union publicized its draft conclusions on Better Regulation for the 3-4 December 2009 Competitiveness Council. The text of these conclusions is available here.
In its draft conclusions, the Council acknowledges that important progress has been achieved both at EU level and in the member states in taking the Better Regulation Agenda forward; it stresses, however, that more needs to be done.
With respect to Impact Assessment, the Council considers that there is scope for quality improvement as regards, inter alia, evaluation of alternative policy options, transparency and quantification of administrative burdens as well as other costs and benefits. It also invites the member states to continue to establish or further develop their impact assessment systems, including providing their civil servants with training in handling impact assessments.
Furthermore, the Council stresses the need for early and timely stakeholder consultation, using appropriate methods, throughout the policy-making cycle to enhance regulatory quality; in addition, it reaffirms the importance of enhancing access to law and the need for clear and simple language in order to make the regulatory framework easier to comply with. Therefore, it invites the Commission to
- enhance the use of consultation during the whole policy-making cycle;
- consider the creation of an easily accessible multi-lingual website, a "single entry point", with updated relevant information on policies and initiatives related to business.
Today marks the formal opening of the UK Supreme Court with the swearing in of its 11 justices in a ceremony in London. The Supreme Court, housed at Middlesex Guildhall, replaces the Law Lords as the last court of appeal in all matters other than criminal cases in Scotland.
According to BBC news ("UK Supreme Court judges sworn in"), Lord Phillips, the first President of the Court, said: "This is the last step in the separation of powers in this country. We have come to it fairly gently and gradually, but we have come to the point where the judges are completely separated from the legislature and executive. ... The change is one of transparency. It's going to be very much easier for the public to come to our hearings. ... I would hope that the court is still sitting in 100 years' time and that when people look back at this step that they see it as a very significant step in the constitution of this country."
The Supreme Court sits for the first time later on Thursday to deal with a relatively minor issue relating to legal costs. Its first major appeal hearing follows next week in a case concerning terrorist suspects whose assets have been frozen.
The Supreme Court's website address is: http://www.supremecourt.gov.uk/. A blog has been launched to monitor Supreme Court developments (http://www.ukscblog.com/).
U.S. EPA Administrator Lisa Jackson announced yesterday a proposal requiring large industrial facilities that emit at least 25,000 tons of greenhouse gases (GHGs) a year to obtain construction and operating permits covering these emissions. These permits must demonstrate the use of best available control technologies and energy efficiency measures to minimize GHG emissions when facilities are constructed or significantly modified.
In addition, EPA is requesting public comment on its previous interpretation of when certain pollutants, including CO2 and other GHGs, would be covered under the permitting provisions of the Clean Air Act. A different interpretation could mean that large facilities would need to obtain permits prior to the finalization of a rule regulating greenhouse gas emissions.
You can find additional information, including a link to the full text of the Administrator's remarks at the California Governor's Global Climate Summit, on the agency's website here. Furthermore, the Washington Post today has an article ("EPA, Senate Take Aim at Greenhouse Gases") on the EPA's proposal and the recent climate bill introduced in the Senate. Here is the article that appeared in the New York Times on the same topic.
The OIRA Draft 2009 Report to Congress on the Benefits and Costs of Federal Regulations is available here. According to the summary provided in the Federal Register Notice of Availability and Request for Comments (which is also available on that same website), the draft report is divided into four chapters. Chapter I examines the benefits and costs of major federal regulations issued in fiscal year 2008 and summarizes the benefits and costs of major regulations issued between September 1998 and 2008. It also discusses regulatory impacts on state, local, and tribal governments, small business, wages, and economic growth. Chapter II examines trends in regulation since OMB began to compile benefit and cost estimates records in 1981. Chapter III provides an update on implementation of the Information Quality Act. Chapter IV summarizes agency compliance with the Unfunded Mandates Reform Act.
On September 14, 2009, the European Ombudsman appeared before the Committee on Petitions of the European Parliament to present the Annual Report for the year 2008. The presentation is available here.
According to the presentation, the Ombudsman closed a record number of inquiries in 2008 - 355 - with most taking less than a year. The Ombudsman registered a total of 3,406 complaints during the year in question, which represents a 6% increase compared to 2007. In almost 80% of cases registered, they were able to help the complainant by opening an inquiry into the case, transferring it to a competent body, or giving advice on where to turn.
An important aspect of the presentation was that in 2008 by far the most common allegation examined was lack of transparency in the EU administration. This allegation arose in 36% of all inquiries and included refusal of information or documents. This finding supports conclusions scholars have reached with respect to a perceived lack of transparency in the EU administration. The Ombudsman himself stated: "It is with a certain degree of concern that I have noted the high number of complaints alleging lack of transparency. After all, an accountable and transparent EU administration is key to building citizens' trust in the EU."
On September 14, 2009, the European Commission issued a Report to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions on the application and effectiveness of the directive on strategic environmental assessment (Directive 2001/42/EC- hereinafter the "SEA Directive") The Report is available here.
The SEA Directive requires certain public plans and programs (P&P) to undergo an environmental assessment before they are adopted. The P&P covered by the Directive are subject to an environmental assessment during their preparation, and before their adoption. This includes the drawing up of an environmental report in which the likely significant effects on the environment and the reasonable alternatives are identified, and the carrying out of consultations (with the public, the environmental authorities, and with other member states (MS) in the case of transboundary impacts). The environmental report and the results of the consultations are taken into account before adoption. Once a P&P is adopted, the environmental authorities and the public are informed and relevant information is made available to them. In order to identify unforeseen adverse effects at an early stage, significant environmental effects of the P&P are to be monitored.
According to the Report, consideration and identification of alternatives in the environmental report is one of the few issues that have given rise to problems in MS. Extensive national guidelines have been developed by some MS in order to provide support for the identification and selection of reasonable alternatives in individual procedures. However, the majority of MS have not defined how this should be done. Most national legislations do not provide a specific definition of 'reasonable alternatives' or a number of alternatives that must be assessed; the choice of 'reasonable alternatives' is determined by means of a case-by-case assessment and a decision. All MS report that the 'do-nothing' alternative has to be included in the environmental report on a mandatory basis.
With respect to consultations, the Report explains that since the SEA Directive does not provide detailed specifications about the procedures for public consultation, a wide range of methods are used: public announcements, publication in official journals or the press, public meetings, internet surveys and questionnaires. The Commission also points out that general experience shows that public consultation, especially when organized at an early stage of planning and when understood as a process, contributes to a higher acceptance of the P&P, and therefore to the early identification and resolution of conflicts.
Furthermore, the Report refers to the relationship of the SEA Directive with other EU legislation, including the Habitats and the Environmental Impact Assessment Directives.
In an op-ed published in the Washington Post of September 13, 2009 (available here, Sen. Kay Bailey Hutchison (R-Tex.) argues that the deployment of a great number of White House "czars" "sets a dangerous precedent that undermines the Constitution's guarantee of separated powers." The White House czars are presidential assistants charged with responsibility for given policy areas. Sen. Hutchison's argument is that these officials hold unknown levels of power over broad swaths of policy; therefore, President Obama should submit each of his policy czars to the Senate so that the latter can review their qualifications, roles and the limits on their authority.
In response to this op-ed, David B. Rivkin Jr. and Lee A. Casey suggest, to the contrary, that "far from undermining the separation of powers the president's right to organize his White House policymaking apparatus is protected by that very constitutional principle." (Washington Post, September 19, 2009 available here) They explain that however much the czars may drive the policymaking process at the White House, they cannot determine what that policy will be. This is the critical difference between the White House czars and federal officials who must be confirmed by the Senate under the "appointments clause" of the U.S. Constitution. In the absence of legislation the only power exercised by White House czars comes from their proximity to the president and the access this provides. As they note, this might be power, but does not constitute "significant authority" under U.S. law and thus is not subject to the requirements of the "appointments clause."
The Senate confirmed Professor Cass Sunstein to be Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, on September 10, 2009 (see New York Times). He was approved 57 to 40, with the vast majority of his support coming from Democrats. The roll call is available here.
Our blog aims to help inform scholars and practitioners of administrative law about new developments in adminstrative law in a wide range of countries and institutions.
Akis Psygkas is organizing the posts. He will be monitoring the press and the academic literature to let subscribers know about important developments and to provide links to documents, court decisions, and recent scholarship. However, he cannot do that alone. We need your help both to locate material and to post comments.
We are happy to post entries in languages other than English and links to non-English materials. The goal is for this to be a truly comparative law effort so we hope that even posts about the US will prompt some of you to respond with information about related developments elsewhere.
We look forward to hearing from you.
All the best, Susan Rose-Ackerman