Administrative law : rethinking judicial control of bureaucracy
著者
書誌事項
Administrative law : rethinking judicial control of bureaucracy
Yale University Press, c1990
- : hard
- : pbk
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注記
Includes bibliographical references and index
内容説明・目次
内容説明
This seminal book presents a fundamental reconsideration of modern American administrative law. According to Christopher Edley, the guiding principle in this field is that courts should apply legal doctrines to control the discretion of unelected bureaucrats. In practice, however, these doctrines simply give unelected judges largely unconstrained-and inescapable-discretion. Assessed on its own terms, says Edley, administrative law is largely a failure. He discussed why and how this is so and argues that law should abandon its obsession with bureaucratic discretion and pursue instead the direct promotion of sound governance. Edley demonstrates that legal analyses of separation of powers and of judicial oversight of agencies implicitly use three decision-making paradigms: politics, scientific expertise, and adjudicatory fairness. Conventional wisdom maintains, for example, that judges should hesitate to question the political choices of legislators and the expertise of administrators, but need not be so deferential in addressing questions of law. Such judicial efforts to police governance have largely failed because, as Edley shows in several contexts, they attempt to appraise decision-making paradigms as though they were separable when in fact the important decisions of both judges and political officials combine elements of politics, science, and fairness. According to Edley, unsustainable boundaries among these paradigms cannot be a satisfactory basis for deciding when a court should interfere. Law must stop focusing on separation of powers and instead direct attention to such issues as bureaucratic incompetence, systemic agency delay, and political bias.
目次
- Part 1 The structure of administrative law: introduction - the discretion problem and the continuing importance of separation of powers theory
- an expository essay - the trichotomy of politics, science and adjudicatory fairness
- the trichotomy's conceptual failings
- scope of judicial review. Part 2 Reconstructing administrative law: unsuccessful remedies for the futility of administrative law
- a constructive essay - "harder-look" review
- a speculative essay - from trichotomy to trio - and sound governance review.
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