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Bail-in within resolution has been at the forefront of the regulatory agenda to end too-big-to fail. The article examines Canada’s recently introduced bail-in framework through a comparative lens, in the backdrop of the COVID-19 pandemic. It argues that Canada embraces a less stringent approach than its international counterparts in applying the bail-in tool and permitting use of public funds. This flexible approach is preferable as it can help the stabilization of the bailed-in bank by facilitating its access to liquidity. Yet, the administration of the bail-in tool will not be without difficulties in Canada. The extensive administrative discretion and opaqueness embedded in the regime come at the expense of rule of law and creditor protection. Further challenges arise from the country’s highly concentrated financial system and interdependencies among the large banks which can also result in a reluctance to turn to bail-in if systemic solvency concerns are present.

Boards of appeal have been set up in some EU agencies to offer legal protection attuned to regulatory fields requiring specialist knowledge. They also moderate the number of technically or scientifically complex cases reaching the generalist EU Courts. However, litigants have recently called in question the limited extent to which boards of appeal delve into contentious empirical appraisals adopted by EU agencies. Do the boards of appeal fulfil the hopes placed in them by exceeding EU judicial review capacities? This paper explores the review technique of the EU Courts and several boards of appeal employed in empirically complex cases decided between 2014 and 2018. It argues that neither the EU Courts nor the boards of appeals can perform a fully autonomous and exhaustive check of the contested empirical appraisals. Due to their institutional and procedural features, they struggle with epistemic uncertainty in regulatory fields in which decisions must be made despite persisting data gaps or the lack of rigorous scientific or technical methodologies. The judicial or extra-judicial review reaches only as far as the applicants themselves can prove the certainty of their scientific or technical assertions against those of the challenged EU institutions or agencies. This conclusion leads to fundamental questions regarding the rule of law’s requirements in relation to the contentious and uncertain empirical basis of a growing number of EU legal acts and the normative functions of EU judicial and extra-judicial review.

From a legal perspective, what is the difference between human soldiers and autonomous weapon systems? Eliav Lieblich and Eyal Benvenisti answer that in combat, soldiers are under the legal duty to exercise constant administrative discretion while autonomous weapons cannot exercise such discretion. I argue that in making this argument, Lieblich and Benvenisti fail to understand the concept of an order. Following Joseph Raz’s discussion of orders as exclusionary reasons, I argue that the entire point of an order is to negate the need of soldiers receiving orders to exercise administrative discretion. For this reason, a soldier who commits a crime while obeying an order may avoid criminal liability based on the criminal defense of obedience to superior orders, even if at the time the order was given, it could not withstand the scrutiny of administrative law. Soldiers need to disobey orders only in cases of manifestly unlawful orders. In order to detect manifestly unlawful orders, soldiers are not required to exercise discretion according to administrative law tests. A sound reading of the manifestly unlawful order doctrine shows that the difference between soldiers and autonomous weapons is not to be found in the realm of reason, but in the realm of emotions. The rise of military lawyers’ involvement in scrutinizing orders demonstrates this point. With lawyers’ scrutiny, soldiers are required to obey orders that were legally cleared in terms of administrative law. Hence, according to Lieblich and Benvenisti, in a world in which all orders are cleared by lawyers, the difference between soldiers and autonomous weapons would not exist. Yet it does exist, and it is based on rejection of orders that have been cleared in terms of administrative law yet still pierce the human eye.

Undeniably, as the organizers mentioned in their concept papers for this workshop, there is a significant risk of losing the WTO system in no distant future. As the title of this paper indicates, the WTO is under attack, not from outside, but from within. As is already known, US President has broad discretion in administering trade issues and can independently decide to withdraw from the WTO, and WTO rules or constitutional restraints have been failing to harness this power. We must consider what can do to address this worst-case scenario. This paper addresses two related technical issues, namely, (i) options to amend the DSU, and (ii) role of basic principles of law such as consistent interpretation to regulate administrative discretion.

This paper identifies regulators’ increasing discretionary practices in the innovation sectors and examines whether international economic law is prepared for this supervisory evolution. As demonstrated by the three cases studied, very often technology laws themselves do not entail sufficient specification, and this is primarily because they are heavily oriented toward principles more so than rules to allow for innovation. This raises the question of how to ensure that these ‘principles’ are consistently and predictably applied. GATS Article VI:1was designed to be an important tool in tackling situations in which a general scheme does not make any distinction between foreign and domestic service suppliers, but the administration of this scheme is not reasonable, objective or impartial. The provision, however, is not sufficiently forceful in a manner that safeguards due process and counters the potential abuse of administrative power.

The operation of several Japanese nuclear power plants has been halted because the Nuclear Regulatory Committee (NRC) reported that these nuclear power plants are not sufficiently prepared for potential terror attacks. It is unclear how the Japanese judiciary exercises judicial review for this NRC decision regarding terror attack protection measures. Japanese courts previously avoided the constitutionality of defense and peace statutes by using political questions. The attitude of the Japanese judiciary toward national defense is symbolic in several cases for Article 9, the pacifism provision of the Japanese constitution. Japanese administrative agencies are authorized to exercise discretion in the scope of power that is vested in them by the statutes passed in the parliament, or Diet. Under the Administrative Case Litigation Act (ACLA), which was revised in 2004, Japanese courts can review administrative discretion according to several principles such as fact-finding, purpose, timing, equal principles, constitutional rights infringement, and unconstitutional motives. The Judiciary has reviewed administrative agencies’ decision under under ACLA. Under ACLA, Japanese courts maintain arbitrary and capricious administrative discretion but not the political validity and policy judgement capability of administrative agencies. Judiciary defers to administrative agency decisions for its expertise. Citizens may take action toward administrative agencies regarding its validity by the Administrative Appeal Act (AAA). The AAA provides an avenue that is simpler than ACLA and yields a more rapid response, but it is not as fair as the ACLA because agencies themselves conduct an internal review on the validity of its decisions. In the famous Ikata nuclear power plant case of 1992, the Japanese Supreme Court deferred to the administrative agency decision for its expertise but did not use the term “discretion.” This may have been because nuclear power plants are related to Japanese energy policy, thus affecting Japan as a whole. This paper argues that in general, the judiciary does not thoroughly review public records and the reasoning behind administrative decisions but may identify unconstitutional motives. The Japanese court has not yet reviewed the NRC decision of halting nuclear power plant operation due to possible terror attacks. The statute for terror attacks was passed soon after the Great East Japan Earthquake in 2011. Terror attacks may provide an avenue for the Japanese judiciary to avoid conducting a judicial review of the administrative agency’s decision. It is unclear whether the Japanese judiciary will carefully examine this issue or defer to the NRC as terrorist protection overlaps with the field of national defense, which is stipulated in Article 9. This paper argues that national defense and nuclear power plant safety in the event of natural disasters both differ and overlap. Japanese administrative law scholars must analyze the expertise of the administrative agency in giving deference to the Japanese judiciary.

In 2017, Congress introduced the Opportunity Zone (``OZ'') designation to promote development in distressed communities. A criticized feature of the program is that state governors select zones from many eligible tracts without meaningful scrutiny. We find that while governors are more likely to select tracts with higher distress levels and tracts on an upward economic trajectory, favoritism seems to play an important role in governor decisions. OZ designation is more likely for tracts in counties that supported the governor in the election and when executives or firms with an economic interest in the tract donated to the governor's campaign.

The proportionality principle (hereafter, the PP) was imported from Germany into Japanese administrative law during the interwar period. The Japanese Supreme Court has never expressly mentioned the principle itself in the opinion of the court except as an obita dictum. There are, however, several judgments that may be understood as the application of the PP. This essay questions whether the principle functions “outside” or “inside” of administrative discretion and whether it performs necessity control or balancing control. It also stands upon the premise that administrative discretion takes place in the process of the application of the law in the narrower sense, distinguished from the interpretation of law and from bare fact-finding, both of which are reserved for the judiciary. Regarding necessity control, the purpose-means construction as the core of the PP is self-evident. As for balancing control, the feature of the PP is that a particular interest is placed on one side of the scale and compared with various other interests. The Supreme Court is rather reluctant to perform such types of dichotomic balancing, but does so in certain cases. Whether such balancing is appropriate depends upon a determination of the desirable degree of judicial review, as well as an understanding of the legal structure in the relevant field. While such dichotomic balancing will provide an effective tool for judicial control, it also presents the risk of making diverse interest structures among various stakeholders invisible.

This article identifies three key problems with the English courts’ current use of Wednesbury unreasonableness to control the exercise of discretion in contract law. First, there are misconceptions about the nature of Wednesbury review in contract law. Second, the intensity with which courts should apply Wednesbury unreasonableness is unclear. Finally, the contents of Wednesbury unreasonableness have been considered vague, leading to uncertainty in its application. This article proposes solutions to each of these problems by examining the jurisprudence and discourse on Wednesbury unreasonableness in public law.

Control of administrative discretion is an important concern in the development of the rule of law. According to Wade and Forsyth, the rule of law has four meanings, and one of them is that “government should be conducted within a framework of recognized rules and principles which restrict discretionary power”. While judicial review is crucial to discerning and enforcing the limits of discretionary power, its interaction with the constitutional principle of separation of powers invites careful consideration of its basis. In reconciling the two principles, British courts have developed reasonableness as the primary basis for judicial review, which was further impacted by continental proportionality after joining the EU. On the other hand, China has adopted distinct criteria for judicial review, namely “manifest unfairness” and “manifest unjustness”. This paper compares judicial control of administrative discretion in the UK and China and argues that despite the gap, China still has a tendency toward judicial initiative, which entails the “thick” meaning of the rule of law. Further, this paper proposes that China should bridge the gap in a progressive way. Part I explores the principle of reasonableness and the principle of proportionality in the UK and reflects on the developmental history of the British approach. Part II examines the situation in China and provides a comparative analysis with the UK’s approach. Part III puts forward suggestions.

Agency nonenforcement is an increasingly important aspect of administrative law. Although nonenforcement is often beneficial (or, in any event, inevitable in light of resource restraints), like other forms of administrative discretion, it can be abused. Indeed, nonenforcement raises difficult questions about administrative regularity and fairness. The Administrative Conference of the United States has commissioned this Report to examine agency nonenforcement of otherwise applicable legal provisions. In particular, this Report’s purpose is to investigate waivers and exemptions, as well as the related concept of prosecutorial discretion. The analysis is intended to be both conceptual and empirical, and to be driven by a very practical goal: identifying ways to improve the nonenforcement process. Accordingly, this Report develops a taxonomy of nonenforcement, presents novel empirical data about the nonenforcement practices of a number agencies, and offers recommended best practices.

This paper forms a methogological appendix to our paper "Legal Ideology, Legal Doctrine and the UK’s Top Judges" [2016] Public Law. In it, we suggest a new approach to using Bayesian ideal point estimation, which seeks to estimate judicial positions on a scale defined in terms of legal doctrine rather than the political scales that are more commonly used in the US literature. Drawing on the literature on 'salience' in political science, and on the findings of work by scholars who have tried to use the more traditional liberal/conservative scale, we argue that such a scale is both defensible and more appropriate than the liberal/conservative scale in the context of judiciaries such as that of the UK.We describe one such doctrinally-derived scale, a 'red light / green light' based on attitudes towards the scope and extent of administrative discretion. We apply that scale to a dataset involving 30 years of decisions from the House of Lords and its successor, the UK Supreme Court. We show that the ideal points we produce not only make mathematical sense, but also make more substantive sense of the phenomenon of judicial disagreement than the traditional liberal/conservative scale used by political scientists. We conclude by arguing for closer engagement by political scientists with legal theories of judging, and for closer attention to be paid by lawyers to the methods used to measure immanent attitudes in political science.

This presentation argues that a key problem posed by AWS is that they constitute a use of administrative powers against individuals without the exercise of proper discretion. AWS are based on pre-programmed algorithms, and therefore – as long as they are incapable of human like metacognition – when they are deployed administrative discretion is bound. Operating on the basis of bound discretion is per se arbitrary and contradicts basic notions of administrative law, notions that, as argued here, complement modern standards of international humanitarian and human rights law. This realization explains better some of the concerns relating to AWS, which are usually expressed in circular arguments and counter-arguments between consequentialist and deontological approaches.

This paper contributes to conceptualising the Banking Union of the European Union (EU) by focusing on judicial control of Independent Agencies (IAs) in comparison with the US administrative law experience. The article explores a potential trade-off between the potential loss of democratic scrutiny and more efficient governance. IAs may indeed prove – as a result of the crisis - to be a tool around which further integration will pivot. Absent sound finances, regulatory agencies may be the most efficient instrument to achieve the desired policies.First, the paper explores the concern over the judicial and democratic control of two IAs set up by the EU Banking Union: the Supervisory Board, considered a de facto agency, within the European Central Bank (ECB), and the Single Resolution Board within the Single Resolution Mechanism.Second, the paper draws insights from the creation of a unitary market in the United States. Much like the EU since 2008, nineteenth-century United States also experienced debt crises and default. The classical study of Skowroneck (1982) shows that the US reacted with new administrative capacities and policy instruments to preserve the market. Even before the establishment of the Interstate Commerce Commission in 1887, which starts the emergence of regulatory agencies, the expansive role for administrative discretion emerged under broad delegations of Congressional authority. As Mashaw and Perry (2009) have explained by analysing the role of administrative role in American development, the Congress that generated substantial regulatory activity on the part of administrative agencies, through permissive acceptance of administrative adjudicatory and enforcement authority. Thus, a comparison between EU and US 19th century administrative law offers an important reference point for understanding the institutional allocation of power. It shows that integration also passes by stages where agencies have to enjoy a rather large amount of discretion.

Immigration law has undergone a seismic shift. In the past, courts categorically denied review over decisions to exclude, deport, and detain noncitizens, reasoning that the political branches possess “plenary power” to decide such questions without judicial constraint. Today, by contrast, courts not only exercise review over such decisions, they frequently reverse them. This article develops a theoretical account of this shift rooted in non-delegation concerns. It challenges the prevailing scholarly narrative, which attributes the demise of plenary power to growing judicial respect for the rights and interests of aliens, contending that modern immigration jurisprudence is better understood as a response to concerns relating to the scope of delegated administrative discretion. Courts have not altered their assessment of the cognizability of noncitizens’ interests; what has changed is their assessment of whether the unreviewable power to regulate immigration is delegable to agency officials. A non-delegation theory of plenary power sheds new light on the scope and limits of the doctrine today. The denial of plenary authority to agency officials, who are responsible for the vast majority of immigration decisions, results in the effective demise of the doctrine in the broad run of cases. At the same time, it leaves intact the fundamental core of the doctrine, precluding judicial scrutiny over decisions rendered directly by Congress or the President, regardless of their impact on noncitizens’ rights.

In 1954, Congress prohibited tax-exempt public charities, including churches, from endorsing or opposing candidates for office. To the extent a tax-exempt public charity violated this prohibition, it would no longer qualify as tax-exempt, and the I.R.S. was to revoke its exemption.While simple in theory, in practice, the I.R.S. rarely penalizes churches that violate the campaigning prohibition, and virtually never revokes a church’s tax exemption. And, because no taxpayer has standing to challenge the I.R.S.’s inaction, the I.R.S. has no external imperative to revoke the exemptions of churches that do campaign on behalf of or against candidates for office.This argument makes the normative case that, notwithstanding the I.R.S.’s administrative discretion and the inability of taxpayers to challenge its nonenforcement in court, the time has come for the I.R.S. to begin enforcing the campaigning prohibition. Failing to do so harms the Rule of Law, the taxpaying public, and churches themselves. Moreover, the moment is correct for enforcement, as Pulpit Freedom Sunday has virtually eliminated the I.R.S.’s search costs, people are more aware than ever that churches are violating the prohibition, and, in the aftermath of the Supreme Court’s Citizens United decision, the campaigning prohibition may represent the final regulatory barrier between charities and politicking.Even if enforcing the campaigning prohibition is the right thing to do, it would potentially be unpopular, and could provoke a backlash against the I.R.S. After making the normative case for enforcement, then, this Article provides a strategy for enforcement that will allow the I.R.S. to explain what it is doing and why to the general taxpaying public, and will further permit the I.R.S. to avoid the appearance of partisanship. Ultimately, enforcement will allow the I.R.S. to responsibly administer the tax law, will permit the question of the prohibition’s constitutionality to get in front of the judiciary, and will demonstrate dedication to the Rule of Law.

This paper, prepared for a symposium marking the thirtieth anniversary of the Supreme Court's decision in Chevron v NRDC, argues that, despite the doctrine's acquiescence in broad administrative discretion, so-called Chevron deference is reconcilable with a conventional account of what the rule of law entails in the modern administrative state. In all but the rarest of cases, however, rule of law values imply that deference should be accorded or not entirely on the basis of the legal interpretation proffered by the administrative agency that is Congress’s designated administrative decision maker, which is typically not the White House. White House involvement in persuading an agency to adopt a non-arbitrary interpretation that the agency embraces and can defend based on reasons rooted in law obviously should not count against that interpretation. But White House involvement should not be thought to earn deference for a proffered legal interpretation, whether originally preferred by an agency or not, that otherwise appears unjustified under “hard look” review. If the White House steers the agency away from an earlier preferred, but less sound interpretation of law, then the negotiated view, if non-arbitrary, may be given deference. But if the White House steers an agency away from an earlier preferred agency interpretation that would have been deference-worthy and at least as sound (in the eyes of the court) as the White House view now being offered as the agency’s own, the court should remand for agency reconsideration unless the White House-preferred interpretation can be shown to reflect exceptional problems of agency coordination.

The emergence of global norms of administrative law reshapes the administrative state. In many areas, covering diverse topics such as trade, financial regulation, public health and the environment, various international agencies have acquired increasing influence over domestic regulatory processes. The integration with the global arena requires the state to forgo some of its regulatory powers. This Article focuses on the normative challenges posed by this new reality. Part I explicates the way in which the argument presented differs from the global administrative law literature. Whereas global administrative law studies the meta-norms that regulate the activities of global administrative bodies, we focus on the way in which international norms reshape decision-making processes within domestic bureaucracies. This Article develops an analytical schema that captures the distinct impacts of global administrative law on the domestic level. This schema distinguishes between three forms of influence: the substitution of domestic administrative discretion by global standards, the emergence of universal standards of administrative due process, and the globally inspired transference of enforcement responsibilities. Part II maps the various mechanisms through which transnational regulatory processes intervene in the local realm, reshaping the contours of domestic administrative law. The Article takes a pluralistic approach by highlighting the diverse sources and paths through which global law influences the domestic realm. Thus we focus both on the influence of the WTO system, as reflected in the three recent rulings against the U.S. (the Tuna-Labeling, Clove Cigarettes and Country of Origin Labeling (COOL) Requirements cases) and on the influence of private transnational institutions such as the International Organization for Standardization, certification bodies such as Social Accountability International (SAI), and regulatory scientific institutions such as the International Commission on Non-Ionizing Radiation Protection (ICNIRP). Part III proceeds to examine the normative challenges posed by these transnational regulatory processes. We start by exploring the hidden ideological agendas of this new global normative body, highlighting especially its neo-liberal, capitalist origins. We then move to discuss the problematic of fragmented accountability regimes. These reflections question the legitimacy of the new body of globalized administrative law and point to the need to adapt our democratic conceptions and practices to this new reality. In this context, our approach steers a middle course between the extremes of sovereign exceptionalism and global constitutionalism, focusing on the potential of administrative law for democratic innovativeness.

The principle of audi altrem partem is a fundamental right of any person. It has been accepted widely by the Supreme Court and has granted the accused or person having the charges against have the right to know the Charges against oneself and the right to be heard and defend oneself backed by the reasoned decision. The court in the above mentioned cases have taken the positive approach to ensure the fair system in the administrative discretion. The positive attitude shown by the judiciary in incorporation of the principle of fair hearing in administrative action not only checks the administrative action but also helps to ensure the procedural fairness.

We live in an era of an intrusive, comprehensive regulatory state. In this world, it is increasingly easy to break the letter of the law without the intention of wrongdoing, and a proliferation of government agencies has led to a proliferation of codified rules regulating not only our commerce, but large swaths of our civic life. We retain, theoretically, the option to remain outside the ambit of much federal and state regulation -- but this is a false hope.This Comment reacts to this proliferation of regulations by proposing a humane and rational attitude, to be consciously adopted by representatives of the regulatory state, both at headquarters and on the front lines. That attitude is one of guided discretion, that is to say, the conscious allocation aforehand of authority between an agency’s central office and its front-line employees, combined with principles and guidelines for line staff to use in making exceptions from their standard operating procedures in the course of enforcing their legal mandates.In particular, I show how administrative agents are similar to prosecutors in the criminal justice system, who already exercise effectively a healthy dose of the sorts of programs that I recommend. And I demonstrate the aptness of this comparison by showing how similar are prosecutorial activity and administrative enforcement and rulemaking activities.As a touchstone for my argument, I will juxtapose two agencies, one an example of the non-use and misuse of discretion, and the other an example of pragmatic and visionary government charting a better way. The former is the Transportation Security Administration (TSA). The latter is U.S. Immigration and Customs Enforcement (ICE), also part of the Department of Homeland Security, which guards our nation’s borders and enforces our immigration laws. While the TSA has adopted a take-no-prisoners attitude against snow globes, cupcakes, toothpaste, and bottled water, ICE has wisely recognized its limits, and decided to deploy limited resources in a more constructive manner, by focusing on dangerous aliens rather than illegal immigrants of a more benign kind.

Polish Abstract: Kryterium sluszności moze wplywac na stosowanie procesow prawnych (w tym decyzji podejmowanych przez organy administracji) na rozne sposoby. Glownym celem tego artykulu jest udzielenie odpowiedzi na pytanie, kiedy i jak moze wplywac na treśc decyzji w oparciu o administracyjne uprawnienia dyskrecjonalne. Uznanie administracyjne rozumiane jest jako mozliwośc wyboru skutkow prawnych aktu administracyjnego. Ogolnie rzecz biorąc, analiza sluszności pozwala wskazac dwie podstawowe sytuacje decyzyjne. W pierwszej sytuacji norma prawna, bedąca normatywną podstawą decyzji dyskrecjonalnej, odnosi sie rowniez do uczciwości jako kryterium, ktore nalezy lub nalezy wziąc pod uwage. Zakres uznania organu administracyjnego zalezec bedzie od rodzaju (bezpośredniego lub pośredniego) tego odniesienia. W drugiej sytuacji nie ma takiego odniesienia w normie prawnej i zalezy to od organu administracyjnego, czy uwzgledni sprawiedliwośc. Jednak w konkretnym przypadku mogą wystepowac pewne nieformalne zalecenia organu umieszczonego wyzej w hierarchii administracyjnej, aby uwzglednic to kryterium w procesie decyzyjnym. Ponadto na treśc decyzji opartą na uznaniu administracyjnym wplyw mają rowniez inne czynniki. English Abstract: Fairness criterion can affect application of law processes (including decisions undertaken by administrative bodies) in different ways. The main goal of this paper is to answer the question when and how it may affect content of a decisions based on administrative discretion. Administrative discretion is understood as a possibility of choosing legal consequences of an administrative act. Generally speaking, an analysis of the influence of fairness allows to point out two basic decisional situations. In the first situation the legal norm, which is the normative basis for discretional decision also refers to fairness as criterion that should be or must be taken into account. The scope of discretion of administrative body will depend on the type (direct or indirect) of this reference. In the second situation there is no such type of reference in the legal norm and it depends on administrative body whether it will take fairness into consideration. However, in a specific case there may be some informal recommendations of a body placed higher in the administrative hierarchy to include this criterion in decision-making process. In addition, the content of a decision based on administrative discretion is also affected by some other factors.

To operate efficiently and effectively revenue authorities require discretion, but processes must be in place to keep discretion in check. This delicate balancing act takes place against the background of a more general constitutional framework. This chapter outlines the unique features of the UK constitution that form the background to the way in which the discretion of the UK revenue authorities (HMRC) is assessed and controlled. It then discusses a limited, yet crucial, set of discretions vested in HMRC. The chapter focuses particularly on the use of non-statutory guidance. It discusses the operation of judicial review, and in particular, the doctrine of legitimate expectations, in the context of such guidance.

Since 1949 to the late of 1990s, Chinese society as well as the politicians’ preference has been in drastic change. By delegating administrative discretion to bureaucrats of high ability, allowing whom to choose actions freely according to social environment, politicians’ targets were achieved. However, high-ability bureaucrats’ payment requirements conflict with the low-powered incentive system in government. Along with China’s market-oriented reform and openness, the social environment and politicians’ preference become more and more stable. Thus, the politician should withdraw the administrative discretion and govern by rule, i.e., turn to law-based administration, and accordingly, substitute mean-ability bureaucrats for high-ability bureaucrats.

Minimalism is our name for the dominant liberal perspective on public policy implementation in contemporary legal scholarship. Minimalism emphasizes public interventions that incorporate market concepts and practices and that centralize and minimize administrative discretion. This essay appraises Minimalism in relation to a competing liberal view of the administrative state. Experimentalism emphasizes interventions in which central government affords broad discretion to local administrative units but measures and assesses their performance in ways designed to induce continuous learning and revision of standards. We fault Minimalist scholarship for ignoring an important reorientation in public policy along Experimentalist lines in the U.S. and elsewhere since the 1990s. We also argue that, in practice, Minimalism is excessively preoccupied with static efficiency norms and price signals and insufficiently attentive to learning and to “weak signals” of risk and opportunity. Experimentalist intervention is a more promising approach in the growing realm of policy areas characterized by uncertainty about both the definition of the relevant problem and its solution.

This article takes a more holistic perspective on the regulation of peaceful protest, one that is different to that usually taken in Anglo-American literature. It will show how private law rules are as much capable of affecting our ability to engage in protest as is public law regulation through the criminal law or the exercise of administrative discretion. That latter will only ever paint a partial and simplistic picture of how protest is regulated. The first part plots the ways in which private law rights and remedies can shape the exercise of the public right of peaceful protest. It comprises three aspects: the criminalisation of what are essentially private, civil law relationships; the differentiated reality of protest resulting from private law rules and concepts relating to land; and the privatisation of the regulation of protest by which the commercial targets of a protest utilise their own private law rights and remedies to control and constrain protesters. The second part considers some of the ramifications of this privatising of the regulation of protest. It concludes by locating these shifts within contemporary domestic politics and the ideological tensions that lie at the heart of the Conservative-LibDem government in the UK. The case will be made in this article that full restoration of the right to non-violent protest, as was pledged in the coalition agreement in May 2011, will require several contentious decisions to be taken.

This Essay was written for a symposium entitled The Delicate Balance: Revenue Authority Discretions and the Rule of Law, held in Prato, Italy on September 23-24, 2010. The purpose of the symposium was to consider how different countries approach and think about delegations of decision-making authority to tax administrators, and the implications of such delegations. The Essay addresses the U.S. experience with delegating administrative discretion to Treasury and the IRS. In the Essay, I relate U.S. tax administration to administrative law doctrine and practice more generally. I link the courts’ willingness to accept congressional delegations as constitutionally permissible to the Administrative Procedure Act and the courts’ interpretation thereof. I identify three key ways in which U.S. tax administration deviates from general administrative law doctrine. Finally, I offer preliminary thoughts regarding the broader implications of those deviations. Essays from the symposium were published as a collection by IBFD in THE DELICATE BALANCE: TAX DISCRETIONS AND THE RULE OF LAW (Chris Evans, Judith Freedman, & Richard Krever eds., 2011).

This article explores the treatment of "accompanied" children-those who are detained as part of a family unit-within the U.S. immigration detention system. Investigations of the T. Don Hutto Residential Center in Williamson County, Texas, and the Berks County Shelter Care Facility in Leesport, Pennsylvania, suggest that the human rights of children being detained in these facilities are routinely violated. Further, the violations do not represent unique departures from the norm, but stem from routine practices and policies instituted at a systemic level. This article argues that the underlying detention framework's excessive reliance on administrative discretion has created openings for these human rights abuses. The over reliance on discretion permeates decision-making in four areas of the detention framework: (1) the detention standards, (2) administrative agency management, (3) detention facility actions, and (4) facility staff members' conduct. This article acknowledges that some amount of administrative discretion is inevitable to give an agency the flexibility it needs to fulfill its congressional mandate. With regard to the detention of accompanied immigrant children, however, the current framework has not reached the correct balance. Instead, it has conferred upon the agency a dangerously inflated amount of discretion. Only by appropriately cabining agency discretion-through comprehensive legislation and congressionally mandated regulations- will the U.S. be able to ensure that the rights of the immigrant children in its custody are protected.

Administrative actions are either ministerial or discretionary. A ministerial function is one where the authority has a duty to do a particular thing in a particular way. Such actions are however exceptional. In most administrative actions, the administrative authority has the power either to act or not to act in one way or the other. This power to act or not to act in one way or other is called Discretionary power. ‘Discretion’ is the power to decide or act according to one’s judgment. The problems of Administrative discretion are complex. It is true that in any intensive form of government, the government cannot function without the exercise of some discretion by the officials. But it is equally true that absolute discretion is ruthless master. It is more destructive of freedom than any of man’s invention . It could be inferred that the use of discretionary power of the administrative authorities is very important for the fulfillment of their functions but the exercise of this discretionary power should not be unguided and uncontrolled. It has to be limited by certain methods so that they do not become unguided and in turn violate the actions of the administrative authority.

This paper considers the implications of public choice theory for the traditional conception of the non-delegation doctrine. This doctrine purports to preserve the legitimacy of delegated decision-making on the basis that the legislative branch retains a dominant and directive influence on the exercise of the delegated power. Public choice theory would contend, however, that there may be reasons for legislators to delegate a significant amount of discretinary power to administrative or regulatory decision-makers: avoiding responsibility for unpopular decision; surreptitiously satisfying vested interests; and so on. McNollgast argued, for example, that legislators can satisfying the demands of their organised supporters via the administrative process whilst avoiding the possible political cost of openly doing so. This highlights a potential tension between the traditional non-delegation model's assumption that legislators will seek to retain control and influence and, on the other hand, the public choice literature's insight that there may be incentives for legislators to deny themselves a conspicuous level of policy control. This suggests that the non-delegation doctrine's insistence on principles and policies or on some goals, standards of factors may be an ineffective means to prevent such abuses of the legislature's entitlement to delegate power. It also proceeds to consider alternatives to the current approach to the non-delegation doctrine, including a stricter application of it by the courts or Mashaw's presidential theory of administative discretion.

This paper examines the practice of public administration within the scope of the political theory of democratic sovereignty. In the late 19th century and early 20th century, experiments in government sought to resolve the need for competence within the scope of the sovereign public. There was a genuine concern that excessive administrative hierarchy would return the United States to autocratic control. However, legislative control was considered corrupt or given to excessive dispersion of responsibility. The core device for reconciling competence and sovereignty, as articulated by Frank Goodnow, was to link discretion to reporting. Administrators are allowed wide discretion in carrying out legislative decisions so long as the satisfactorily report their activities and success to the legislative (democratically sovereign) decision maker. The paper explores difficulties that arise when administrators become experts who supplant value-based decisions with scientized standards. It explores the relationship between efficiency and effectiveness. And, it explores the significance of dispersed discretion throughout the organization for hierarchic responsibility.Although problematic, the combination of legislative decision-making, administrative discretion, and performance reporting is the likely viable method for retaining democratic sovereignty and achieving competent government.