Explaining Administrative Law: Reflections on Federal Administrative Law in Nineteenth Century America

Reinventing Regulation/Reinventing Accountability: Judicial Review in New Governance Regimes

“…Their task in conducting "merits review" is to "examin[e] whether a decision is substantively correct, after consideration of all relevant issues of law, fact, policy and discretion." 7 Merits review means that the tribunal "stands in the 4 See Goss v. Lopez, 419 U.S 565, 579 (1975) ("some kind of hearing" required before short-term suspension of student from school). A fair hearing is required by the due process clause of the Fifth Amendment whenever agency action deprives a person of life, liberty or property.…”

“…One of the main reasons for this development of implementing EU policies in networks of EU and Member State actors may lie in the relatively small administrative capacities of the EU in relation to its duties. 4 In this context, there is a continuously growing gap between the prolific creation of agencies in the EU and conferral of powers on them on the one hand, and their recognition in EU primary constitutional Treaty law on the other hand. 5 As Dehousse writes, "European integration is an unprecedented attempt to build a form of continental order without recreating the hierarchical power structure of states," 6 but warns that "as those who have been following the situation know, the creation of European agencies was a fairly haphazard development."…”

“…That said, interest in empirical research in this aspect of the health system is on the rise. 4 In addition to these general challenges faced by all empirical legal researchers, any attempt to evaluate the impact of a health-related adjudicative tribunal faces additional hurdles. Not only has such an assessment never before been comprehensively undertaken, but the most suitable research methodology to do so remains highly elusive.…”

“…1 For example, the Constitution vests legislative power in Congress, 2 judicial power in the courts 3 and executive power in the President. 4 However, the lines of separation between the branches are not complete; and, there are many instances when power is divided between two branches of government. For example, not only must both houses of Congress pass legislation, it must be presented to the President for signature or veto.…”

“…For instance, one might think that experts at the Environmental Protection Agency [EPA], not the president or a senator from West Virginia, should determine limits on pollution from coal-fired plants under the rulemaking authority of the Clean Air Act. 4 This abiding concern that political preferences -broadly construed to include value judgments -can improperly affect agency policymaking featured prominently in the Supreme Court"s recent exploration of the force of agency precedent in FCC v. Fox Television Stations, Inc., in which broadcast firms challenged the FCC"s decision to abandon its "fleeting expletives" policy. 5 A five-justice majority led by Justice Scalia concluded that the agency had given an explanation for its action that was reasonable 1 See e.g.…”