Strategic Delegation, Discretion, and Deference: Explaining the Comparative Law of Administrative Review

Garoupa, Nuno; Mathews, Jud

doi:10.5131/ajcl.2013.0013

“…The Wednesbury principle made administrative action subject to a reasonable test in English law, and according to the Chevron doctrine in the US, federal courts defer to reasonable interpretations of statutes by agencies. However, deference in common law countries is largely the outcome of strategic delegation, as one of us explained in a previous article (Garoupa and Mathews, 2014). 3 The court-agency relationship in different legal families closely follows a rational choice between discretion and deference that reflects the main lines of reasoning common to the standard discussion in private law, as one of us explained in a previous article (Garoupa and Mathews, 2014).…”

Section: Legal Originsmentioning

confidence: 91%

Judging in Europe: Do Legal Traditions Matter?

Zhang

¹

,

Liu

²

,

Garoupa

³

2018

Journal of Competition Law &Amp; Economics

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EU competition appeals typically involve applications by private businesses to annul decisions made by the European Commission. Moreover, these appeals are first assigned at random to a chamber, with a judge then designated as the rapporteur who will be most closely involved with the case. Using hand-collected original data on the background characteristics of EU judges and on competition judgments by the General Court between 1989 to 2015, we test the extent to which the legal origins of judges bear a statistically significant effect on case outcomes and that the rapporteur plays a crucial role in the decision-making process. In particular, if a rapporteur comes from a country whose administrative law has a strong French influence, the decision is more likely to favor the Commission than if he is from any other EU country. These results are robust to alternative political ideology variables, including left-right politics and a preference for European integration.Angela Huyue Zhang is an associate professor at the University of Hong Kong and a senior lecturer in competition law and trade at King's College London; Jingchen Liu is an associate professor in the Department of Statistics at Columbia University; Nuno Garoupa is a professor at Texas A&M University School of Law who also holds the chair in research innovation at Católica Global Law School, Lisbon. We are grateful for the generous help that we received from a number of current and former members and staff of the Court of Justice of the European Union. We are also indebted to one anonymous referee, Harry First,

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“…The Wednesbury principle made administrative action subject to a reasonable test in English law, and according to the Chevron doctrine in the US, federal courts defer to reasonable interpretations of statutes by agencies. However, deference in common law countries is largely the outcome of strategic delegation, as one of us explained in a previous article (Garoupa and Mathews, 2014).…”

Section: Legal Originsmentioning

confidence: 98%

“…The court-agency relationship in different legal families closely follows a rational choice between discretion and deference that reflects the main lines of reasoning common to the standard discussion in private law, as one of us explained in a previous article (Garoupa and Mathews, 2014).…”

mentioning

confidence: 88%

Judging in Europe: Do Legal Traditions Matter?

Zhang

¹

,

Liu

²

,

Garoupa

³

2016

SSRN Journal

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1

0

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EU competition appeals typically involve applications by private businesses to annul decisions made by the European Commission. Moreover, these appeals are first assigned at random to a chamber, with a judge then designated as the rapporteur who will be most closely involved with the case. Using hand-collected original data on the background characteristics of EU judges and on competition judgments by the General Court between 1989 to 2015, we test the extent to which the legal origins of judges bear a statistically significant effect on case outcomes and that the rapporteur plays a crucial role in the decision-making process. In particular, if a rapporteur comes from a country whose administrative law has a strong French influence, the decision is more likely to favor the Commission than if he is from any other EU country. These results are robust to alternative political ideology variables, including left-right politics and a preference for European integration.

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“…In particular, France and Italy conduct procedural judicial reviews of regulatory impact assessments. As these countries are also characterized by the existence of the Council of State, which belongs to the administration and is regarded as a low-autonomy court, they are the most plausible next countries to enact public participation in rulemaking (Garoupa & Mathews, 2014).…”

Section: And Conclusionmentioning

confidence: 99%

“…However, even though courts act as crucial actors in fire‐alarm mechanisms (McCubbins et al, 1999; Garoupa & Mathews, 2014), most studies have neglected them. Therefore, the next section discusses courts and their independence as the main explanation for the enactment of public participation in rulemaking.…”

Section: Insights On the Enactment Of Rulemaking In Parliamentary Sys...mentioning

confidence: 99%

The enactment of public participation in rulemaking: A comparative analysis

Francesco¹,

Tosun

²

2022

Swiss Political Sci Review

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This study analyzes the enactment of public participation in rulemaking within the European Union and the Organization of Economic Cooperation and Development countries. It relies on an original dataset of administrative procedural acts and administrative laws concerning the making of delegated legislation. As 12 out of 39 countries enacted a procedure of notification, publication, and consultation between 1995 and 2015, the study focuses on courts while controlling for other domestic institutional determinants of legislative adoption and countries' interdependence. The empirical findings show that countries with a highly independent judiciary system are less likely to enact a comprehensive provision for public participation in rulemaking. This finding highlights a paradox, namely that political systems are more likely to adopt rulemaking to enhance democratic legitimacy if they are characterized by a judicial system that does not actively pursue the legality of rulemaking. ZusammenfassungDiese Studie untersucht, wie die Öffentlichkeit an Rechtsetzungsverfahren in den Mitgliedstaaten der Europäischen Union und der OECD mitwirken kann. Hierzu verwendet sie einen neuartigen Datensatz, der Informationen zu den entsprechenden Verwaltungsverfahrensakten und Verwaltungsgesetzen enthält, die die rechtliche Grundlage hierfür schaffen. Zwischen 1995 und 2015 haben 12 der 39 untersuchten Staaten ein entsprechendes Notifizierungs-, Veröffentlichungs-und/ oder Konsultationsverfahren eingeführt, was uns dazu bewogen hat, den Untersuchungsfokus dieser Studie auf die Rolle von Gerichten zu legen. Gleichzeitig kontrollieren wir für den Einfluss von alternativen institutionellen Erklärungsfaktoren. Die empirischen Befunde zeigen, dass Länder mit unabhängigen Justizsystemen seltener der Öffentlichkeit die Möglichkeit einräumen, sich an Rechtsetzungsverfahren zu beteiligen.

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Strategic Delegation, Discretion, and Deference: Explaining the Comparative Law of Administrative Review

Abstract: This paper offers a theory to explain cross-national variation in

Cited by 8 publications

References 11 publications

Judging in Europe: Do Legal Traditions Matter?

Judging in Europe: Do Legal Traditions Matter?

Judging in Europe: Do Legal Traditions Matter?

The enactment of public participation in rulemaking: A comparative analysis

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