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The institutionalization of European administration space is examined through one of the least visible or understudied, but most important, outcomes of integration: the development of administrative law for the European Union (EU). As positive integration came to constitute a central priority for EU organizations, the European Commission’s administrative responsibilities and capacities multiplied, so that it is now expected not only to monitor and enforce compliance with an increasingly dense and technical body of supranational rules but also to determine how that law is to be applied to specific individuals and situations. Neither task could be performed without appropriating a great deal of discretionary authority, and it is argued that, in Western democracies, the problem of controlling rising administrative discretion has inevitably been felt, and has typically been dealt with through the development of judicial mechanisms. Using the American (US) experience as a comparative backdrop, it is shown that once judges require that administrators furnish formal justifications for their actions, the judicial review of the ‘reasonableness’ of administrative acts follows. The author traces how these and other forms of judicial control of the EU’s administrative acts developed through litigation and the rule-making of the European Court of Justice and the Court of First Instance, despite the absence of explicit Treaty of Rome provision, so that the basic foundations of EU administrative law are now in place.

To sustain a viable social science of law and courts, testable propositions, appropriate research designs for testing those hypotheses, and comparative materials are needed; Ch. 4, and the two papers within it, discuss and use three strategies for building theory through testing and comparing. This first paper, which was originally published in the University of Chicago Law Forum in 1992, discusses a mode of testing that involves constructing causal hypotheses to explain a major change that has occurred in one particular part of one particular legal system, and testing these comparatively either by predicting future developments in the same legal system, or (as here) by predicting that another legal system now displaying the same hypothesized conditions will experience in the future those results that occurred in the first system. Shapiro examines the ‘giving reasons requirement’ in European Community (EC) law by deriving predictions about European law from the evolution of American judicial review of administrative acts. The first part of the paper examines the giving reasons requirement in relation to administrative discretion and judicial review of administrative action in the United States. The second part goes on to compare US and EC law, looking at whether the EC giving reasons requirement is substantive as well as procedural, and examining the experience of the European Court of Justice with substantive review.

This chapter examines the extent to which administrative law obligations are extended to private delegates of governmental power. Part One presents a short overview of the variety of sources of administrative law in the three jurisdictions. Part Two deals with the content of administrative law, in terms of the relevance of the general values of administrative law in responding to the challenges posed by private delegation. Part Three reviews the four primary applicability criteria for administrative law found in the US, England, and the EU: institutional identity, procedure, source of power, and function. The suitability of these criteria for reaching private delegates is assessed. Finally, Part Four comments on the application of freedom of information legislation to private delegates. As in Chapter 6, the argument is made that the reach of administrative law should depend on the nature of the power exercised, not the power-holder.

Chapter 2 explains the conceptual framework on which the book is based. The concept of participation adopted singles out a rights-based approach to participation from other forms of participation. It is built by reference to the functions of participation — protection of human dignity and pursuance of material justice — and to the persons who are entitled to access the procedure. Furthermore, the reasons and limits of the distinction between rulemaking and individual determinations for purposes of participation are analysed and criticised. This issue is also examined by referring to selected national administrative laws. This chapter further proposes the concept of legal administrative relationship as the framework for the recognition and interpretation of participation rights. Finally, participation rights are characterised as relative rights, given that, in justified circumstances, incompatible requirements of decision-making may prevail; in any case, this contingency needs to be framed within specific limits, an aspect which is also addressed in this chapter.

This chapter examines the immigration agency’s historical position against judicial review over immigration prosecutorial discretion decisions and the philosophy behind judicial review. For more than a decade, the immigration agency has depended on the conclusions in two Supreme Court decisions, Heckler v. Chaney and Reno v. ADC, to (re)state that prosecutorial actions in immigration law are precluded from judicial review. This chapter describes the standards outlined in the Administrative Procedure Act and Immigration and Nationality Act for judicial review of agency actions and applies these standards to a portion of federal court decisions involving administrative discretion. This chapter illustrates that noncitizens possibly do have a right to challenge a prosecutorial discretion decision in federal court.

This chapter presents three main arguments. The first is that unlawful administrative acts are void in law. But they clearly exist in fact and they often appear to be valid; and those unaware of their invalidity may take decisions and act on the assumption that these acts are valid. When this happens the validity of these later acts depends upon the legal powers of the second actor. The crucial issue to be determined is whether that second actor has legal power to act validly notwithstanding the invalidity of the first act. Secondly, the presumption of validity is properly restricted to determining whether interlocutory relief should be granted. In granting such relief the court has regard to the convenience of the parties and like matters and does not determine the validity of the act in question. Thirdly, the chapter argues that were unlawful administrative acts to be only voidable, it would be possible for public authorities to coerce individuals in reliance upon unlawful acts, for example by mounting prosecutions on the basis of unlawful by-laws. This is offensive to the rule of law and shows why the principle of collateral challenge is so important. Those decisions that seek to undermine this principle by restricting such challenges are rightly suspect. Judicial review is no substitute for collateral challenge, for the latter is a matter of right and the former is infused with discretion.

This chapter focuses on the theoretical relationship between public law and the notion of illegality and liability in a damages action, discussing whether the unlawfulness of an administrative act is a necessary precondition of liability for fault and determining the sufficient consideration of invalidity for administrative fault. According to the French law, illegality is a necessary precondition for administrative liability — the invalidity of an administrative act makes sufficient fault, giving rise to liability. But in English law, the idea has been a topic of debate with regard to the torts of statutory duty and negligence, and other English torts. The role of illegality in damages actions within the English system may expand problems to extension of liability, inhibition of administrative activity, or a correlative retrenchment of the scope of ultra vires, which may cause a clash between the concepts of public and private law, and add further difficulty.

This chapter aims to clarify the attitude of the French and English courts toward state liability in tort with a comparative survey of prevailing tests of causation in each jurisdiction. The English courts adopted an approach of causal inquiry into the tort of negligence divided into a two-stage analysis — preliminary filter of factual causation using the causa sine qua non theory (but-for test) and the question of legal cause based on reasonable forseeability. On the other hand, the French courts asserted a unitary conception of causation — a nuanced approach which relies on various causal theories to address the problems of assessing liability. However, with both approaches, there is a concern for multiple causes such as third parties, contributory fault of the injured party, and independent natural events, as well as the matter of unlawful administrative acts.

This chapter examines the growth of the administrative state (and particularly agency adjudication) as a mechanism for moving the resolution of political, legal, and policy disputes away from the courts. The growth and development of administrative agencies with their own internal apparatus for dispute resolution has, in effect, led to a change in venue for individuals and groups pursuing various would-be legal claims. In response to the fear that agencies perform core judicial functions without providing due process guarantees, Congress passed the Administrative Procedure Act (APA) in 1946 with the goal of establishing guidelines for agency rulemaking and adjudication. But agencies were nonetheless left with appreciable discretion; and although courts provided an important watchdog role over agency adjudication for much of the 1950s and 60s, increased deference to administrative rulings and diminished opportunities for judicial review have left many wary about the quality of rights protection that agencies provide.

This chapter deals with the resource Law, which is defined as the competence of public actors to formulate and implement public policies and the right of civil actors to appeal mainly public implementation acts in the courts. Law is considered as an important public action resource, the main service of which that can be mobilized by actors is the “right to impose a behaviour that complies with the objective law”. Examples are provided of cases involving the lack of a legal basis (political-administrative actors). They are drawn from municipal implementation activities, including non-decisions, financial policy, public tendering procedures and public infrastructure policies, and language policies. The chapter highlights the importance of the right to submit an appeal (or not), the threatened or actual submission of an appeal, and the particular cases of renouncement of this right.

This chapter presents the English translation of the Introduction of the Criterion. Here, the author discusses the meaning of legal opinion, judicial ruling, and administrative acts, and how the book provides a comprehensive treatment of these issues. The book is composed in the form of a series of questions, in the manner that replicates the discussions that took place between the author's colleagues and himself. The answer immediately follows each question, pointing out the subtleties of these points and the issues that derive from them, as manifested in judicial decisions, legal opinions, and administrative acts of public officials. The book contains forty questions.

This chapter describes examples of Progressive administration from the New Deal and the Second Reconstruction. This account explores the tension between public deliberation in the administrative process and efficient delivery of the services that make democracy possible. During the New Deal, the Tennessee Valley Authority and the Agricultural Adjustment Administration engaged in highly deliberative forms of land use planning. But these deliberative procedures tended to exclude low-income and minority farmers. The Farm Security Administration, by contrast, provided desperately needed goods and services to poor farmers, but did not generally engage them in administrative policymaking. As the New Deal drew to a close, the Progressive emphasis on participatory modes of administration were codified in a thin form in the Administrative Procedure Act. At the same time, the social impacts of the New Deal agricultural agencies created some of the conditions for the Second Reconstruction. During the Second Reconstruction, civil rights agencies attempted to combine public participation and efficient bureaucracy in new institutional forms. The Department of Health, Education, and Welfare developed broad understandings of the social background for segregation that enabled courts to integrate schools in the South. The Equal Employment Opportunity Commission deliberated with civil rights groups and the courts to develop the disparate impact theory of discrimination. The Office of Economic Opportunity instituted radical forms of public participation in implementing the “maximum feasible participation” requirement of the Economic Opportunity Act.

This chapter develops a normative model of Progressive democracy on the basis of the intellectual and institutional history presented in the previous chapters. The Progressive theory remedies deficiencies in existing arguments for administrative legitimacy—those based on efficiency, constitutional values, or republican political theory. Unlike these theories, Progressivism draws an intrinsic connection between the purpose and the structure of regulatory law. Its purpose is to promote individual freedom through law. The structure of regulatory law ensures that such norms arise from the people’s own self-understandings. Progressivism aligns with deliberative democratic theory, but focuses on ex post deliberation about the consequences of policies, rather than solely on ex ante justification. This democratic theory requires an iterative process where abstract norms are expressed in law and then specified in a participatory and rational administrative process. The United States has a thin version of such a process in the Administrative Procedure Act’s “notice-and-comment” rule-making provisions. But today this process is too technocratic and distorted in favor of well organized and powerful interests. Opportunities for inclusive and egalitarian participation must therefore be deepened. At the same time, administrators must understand that they have an official duty to further the equal freedom of the persons their decisions affect. Judicial review of administrative action impedes such a self-understanding because it focuses on technocratic and instrumental reasoning. At the same time, the increasing investment of power in the president threatens to undermine deliberation with arbitrary assertions of personal will.

Administrative law has struggled to be what it axiomatically should be—the law of public administration. In this chapter I examine two ‘administrative moments’ in the history of Anglo-American administrative law—the Committee on Ministers’ Powers Report published in 1932 in the United Kingdom and the Attorney General Committee’s Report on Administrative Procedure 1941 in the United States—to show why this is the case. While both were partly instigated by an appreciation of the need to forge a body of law grounded on an understanding of public administration, neither resulted in that. My argument is that this was because they never surmounted three structural challenges inherent in developing administrative law: engaging with diverse administrative material and institutions; fostering administrative law expertise; and not being tempted into understanding the legal reasoning inherent in administrative law as a battle between competing ideologies.

This chapter examines the immigration agency’s historical position against judicial review over immigration prosecutorial discretion decisions and the philosophy behind judicial review. For more than a decade, the immigration agency has depended on the conclusions in two Supreme Court decisions, Heckler v. Chaney and Reno v. ADC, to (re)state that prosecutorial actions in immigration law are precluded from judicial review. This chapter describes the standards outlined in the Administrative Procedure Act and Immigration and Nationality Act for judicial review of agency actions and applies these standards to a portion of federal court decisions involving administrative discretion. This chapter illustrates that noncitizens possibly do have a right to challenge a prosecutorial discretion decision in federal court.

This chapter examines the executive branch and the role of administrative law. It begins with a history of the rise of the administrative state. Next, it lays out a typology of administrative bodies, classifying them by subject matter and structure, and looks at the issue of agency capture. Finally, the chapter examines how courts and legislatures exert control over administrative agencies.

Chapter 2 describes the nature and the process of notice-and-comment rulemaking. The rules governing rulemaking are arcane; indeed, their very arcaneness is central to the book’s theory. But, because the book’s argument rests in part on the ability of agencies to use their procedural prerogatives to their advantage, it is important for readers to have a basic understanding of the process itself. This chapter briefly explains that process, highlighting key areas of bureaucratic discretion under the Administrative Procedure Act. The chapter also offers a brief historical overview of rulemaking and explains the different oversight mechanisms that the president (via the Office of Information and Regulatory Affairs), Congress, and the courts have over the process.

This chapter introduces the basic elements of administrative law and some key related legal doctrines. It covers administrative procedures acts that govern how agencies make or promulgate regulations and the rights of the public to have input. It then addresses the law governing legal challenges to the validity of the rules that agencies succeed in issuing, such as the ultra vires doctrine, and how agencies defend their decisions through legal doctrines such as Chevron deference. Finally, the chapter discusses how people establish standing to challenge agency actions, both through administrative channels and via the writ of habeas corpus.

Chapter 9 considers the relevance of control of territory to the acquisition of legal obligations by armed groups. Employing the principle of ‘effectiveness’ as its starting point, the chapter conducts a detailed analysis of the rules on State responsibility, focusing in particular on Article 9. It also charts jurisprudence from the US Supreme Court, the US-Mexico General Claims Commission, and the Franco-Italian Conciliation Commission. Finding support for the idea that States may be held responsible for the impersonal acts of armed groups, the chapter explains how this case law may give rise to an argument that armed groups are bound by the international obligations of the State in instances where they control territory. It concludes by explaining how the obligations of armed groups may also originate in the continued rights of the population in the territory under their control.