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A Theory of Deference in Administrative Law

A Theory of Deference in Administrative Law
Author: Paul Daly
Publisher: Cambridge University Press
Total Pages: 323
Release: 2012-06-28
Genre: Law
ISBN: 1139536990

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In the modern administrative state, hundreds if not thousands of officials wield powers that can be used to the benefit or detriment of individuals and corporations. When the exercise of these powers is challenged, a great deal can be at stake. Courts are confronted with difficult questions about how to apply the general principles of administrative law in different contexts. Based on a comparative theoretical analysis of the allocation of authority between the organs of government, A Theory of Deference in Administrative Law provides courts with a methodology to apply no matter how complex the subject matter. The firm theoretical foundation of deference is fully exposed and a comprehensive doctrine of curial deference is developed for application by courts in judicial review of administrative action. A wide scope is urged, spanning the whole spectrum of government regulation, thereby ensuring wide access to public law remedies.


Deference to the Administration in Judicial Review

Deference to the Administration in Judicial Review
Author: Guobin Zhu
Publisher: Springer Nature
Total Pages: 445
Release: 2019-11-23
Genre: Law
ISBN: 3030315398

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This book investigates judicial deference to the administration in judicial review, a concept and legal practice that can be found to a greater or lesser degree in every constitutional system. In each system, deference functions differently, because the positioning of the judiciary with regard to the separation of powers, the role of the courts as a mechanism of checks and balances, and the scope of judicial review differ. In addition, the way deference works within the constitutional system itself is complex, multi-faceted and often covert. Although judicial deference to the administration is a topical theme in comparative administrative law, a general examination of national systems is still lacking. As such, a theoretical and empirical review is called for. Accordingly, this book presents national reports from 15 jurisdictions, ranging from Argentina, Canada and the US, to the EU. Constituting the outcome of the 20th General Congress of the International Academy of Comparative Law, held in Fukuoka, Japan in July 2018, it offers a valuable and unique resource for the study of comparative administrative law.


Administrative Law and Judicial Deference

Administrative Law and Judicial Deference
Author: Matthew Lewans
Publisher: Bloomsbury Publishing
Total Pages: 272
Release: 2016-01-28
Genre: Law
ISBN: 178225336X

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In recent years, the question whether judges should defer to administrative decisions has attracted considerable interest amongst public lawyers throughout the common law world. This book examines how the common law of judicial review has responded to the development of the administrative state in three different common law jurisdictions – the United Kingdom, the United States of America and Canada – over the past 100 years. This comparison demonstrates that the idea of judicial deference is a valuable feature of modern administrative law, because it gives lawyers and judges practical guidance on how to negotiate the constitutional tension between the democratic legitimacy of the administrative state and the judicial role in maintaining the rule of law.


Administrative Law Theory and Fundamentals

Administrative Law Theory and Fundamentals
Author: ILAN. WURMAN
Publisher: Foundation Press
Total Pages: 1261
Release: 2021-05-11
Genre:
ISBN: 9781647084264

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CasebookPlus Hardbound - New, hardbound print book includes lifetime digital access to an eBook, with the ability to highlight and take notes, and 12-month access to a digital Learning Library that includes self-assessment quizzes tied to this book, leading study aids, an outline starter, and Gilbert Law Dictionary.


Deference

Deference
Author: Gary Lawson
Publisher:
Total Pages: 229
Release: 2019
Genre: Law
ISBN: 0190273402

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Deference is perhaps the most important concept and practice in law. It lies at the core of every system of precedent, appellate review, federalism, and separation of powers, all of which center on how one actor should deal with previous decisions. Oddly enough, deference is also one of the most under-analyzed and under-theorized legal concepts and practices, perhaps because its applications are so varied. This book's goal is to provide a definition of deference and a vocabulary for discussing it that can be used to describe, explain, and/or criticize deference in all of its manifestations, including some manifestations that are not always identified by legal actors as instances of deference. This project does not seek to prescribe whether and how any legal system should apply deference in any specific circumstance or to critique any particular deference doctrines. Rather, it aims to bring the concept of deference to the forefront of legal discussion; to identify, catalogue, and analyze at least the chief among its many applications; to set forth the many and varied rationales that can be and have been offered in support of deference in different legal contexts; and thereby to provide a vocabulary and conceptual framework that can be employed in future projects, whether those projects are descriptive or prescriptive.


Law’s Abnegation

Law’s Abnegation
Author: Adrian Vermeule
Publisher: Harvard University Press
Total Pages: 267
Release: 2016-11-14
Genre: Law
ISBN: 0674974719

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Ronald Dworkin once imagined law as an empire and judges as its princes. But over time, the arc of law has bent steadily toward deference to the administrative state. Adrian Vermeule argues that law has freely abandoned its imperial pretensions, and has done so for internal legal reasons. In area after area, judges and lawyers, working out the logical implications of legal principles, have come to believe that administrators should be granted broad leeway to set policy, determine facts, interpret ambiguous statutes, and even define the boundaries of their own jurisdiction. Agencies have greater democratic legitimacy and technical competence to confront many issues than lawyers and judges do. And as the questions confronting the state involving climate change, terrorism, and biotechnology (to name a few) have become ever more complex, legal logic increasingly indicates that abnegation is the wisest course of action. As Law’s Abnegation makes clear, the state did not shove law out of the way. The judiciary voluntarily relegated itself to the margins of power. The last and greatest triumph of legalism was to depose itself.


Administrative Law and Curial Deference

Administrative Law and Curial Deference
Author: Matthew Lewans
Publisher:
Total Pages: 276
Release: 2010
Genre: Administrative law
ISBN:

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This thesis examines three interrelated issues. The first concerns a question about the status of administrative law, namely whether administrative officials have authority to determine what the law requires under a democratic constitution. Historically, this question has not been adequately addressed in public law scholarship because neither Diceyan constitutional theory nor common law doctrine has been traditionally receptive to administrative law. In this thesis, I argue that there are good reasons for people to respect the legal authority of administrative officials and their decisions. Those reasons are rooted in respect for the democratic process by which administrative officials are empowered, and respect for the various forms of expertise that administrative officials possess.The second issue concerns the doctrinal aspect of administrative law. If there are good reasons for believing that administrative officials have legitimate legal authority, then those same reasons suggest that judges should respect administrative legal decisions. In order to better understand how the relevant reasons for respecting administrative decisions alter the practice of judicial review, I compare and contrast the traditional doctrine of jurisdictional review with the doctrine of curial deference. This comparison shows that the doctrine of curial deference provides a superior account of the legitimate legal authority of administrative officials, and that this account makes a practical difference for the practice of judicial review.The third issue concerns whether the doctrine of curial deference can be reconciled with the rule of law. Assuming that there are good reasons for respecting administrative decisions, how can judges both respect an administrative decision while ensuring that it is consistent with the rule of law? I argue that judges can both respect administrative decisions and maintain the rule of law by requiring administrative officials to justify their decisions adequately in light of public reasons which are both patent and latent in existing legal materials.


Judging at the Interface

Judging at the Interface
Author: Esmé Shirlow
Publisher:
Total Pages:
Release: 2020-12
Genre:
ISBN: 9781108867108

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"Introduction Deference and the International Adjudication of Private Property Disputes While working as a government lawyer in 2011, a letter came into our office advising that the Philip Morris tobacco company had decided to sue Australia under a bilateral investment treaty. The company contended that Australia's tobacco plain packaging requirements breached its intellectual property rights, entitling it to billions of dollars in compensation under international law. This news was not particularly shocking to the small team of which I was part, which had been assembled within the government's Office of International Law to respond to these types of claims. The news was shocking, though, to the wider Australian community. Over the ensuing months, the community's disbelief became better-articulated in the press: How can an international tribunal sit in judgment over a measure which the Australian Parliament had decided was in the public interest after extensive scientific enquiry and public consultation? Could an international tribunal really reverse the finding of Australia's highest court that the legislation was lawful?"--


Administrative Law

Administrative Law
Author: John M. Rogers
Publisher: Aspen Publishing
Total Pages: 1090
Release: 2021-01-31
Genre: Law
ISBN: 1543825893

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For instructors who prefer a case-oriented approach, the Fifth Edition of Administrative Law is a case-rich text that focuses on the core issues in administrative law. Lightly-edited cases preserve the feel of reading entire opinions and include facts, content, full analyses, and citations. Keystone cases introduce important themes and topics. Introductory material and questions following the cases focus students’ reading and stimulate class discussion, while helpful notes facilitate keen understanding of legal doctrines, introduce students to academic responses to judicial decisions and agency practices, and identify recent developments in doctrine and academic study. “Theory Applied” sections at the conclusion of major parts offer teachers an opportunity to evaluate students’ grasp of the materials in new factual and legal contexts. This flexible, easily teachable text is designed for a 3-unit course, and its self-contained parts can be taught in any order. New to the Fifth Edition: Addition of important, recent U.S. Supreme Court and Circuit Court decisions throughout Extended discussion of “informal” agency adjudication Updated discussion of the nondelegation doctrine and its possible future Recent developments in judicial review, including with Kisor and Chevron deference and standing Professors and students will benefit from: Notes and discussion materials addressing contemporary issues in Administrative Law, including: due process in the administrative setting formalities of administrative rulemaking and adjudication benefits and costs of agency adjudication and rulemaking modification of agency interpretations and interpretive rulemaking delegation of authority to agencies and private entities political influence on agency policy justiciability and judicial deference Lightly-edited cases, similar to reading entire opinions, including facts, content, full analyses, and citations Flexible, teachable text, designed for a 3-unit course with modular sections that allow for easy reshuffling of materials Helpful Notes crafted to enrich students’ understanding of legal doctrines, introduce important themes and topics, and identify possible future developments to theory and doctrine. “Theory Applied” problems and capstone cases that allow systemic review and integration of major concepts Up-to-Date content that includes coverage of important new developments in administrative practice, including recent Executive Orders that attempt to further centralize control of policy-making in the White House. Coverage of contemporary separation of powers problems and controversies affecting the administrative state, including comprehensive treatment of the Vacancies Reform Act.


A Theory of Deference in Administrative Law

A Theory of Deference in Administrative Law
Author: Paul Daly
Publisher: Cambridge University Press
Total Pages: 323
Release: 2012-06-28
Genre: Law
ISBN: 1107025516

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Paul Daly develops a theory concerning the appropriate allocation of authority between courts and administrative bodies.