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Created by Congress in 1996, the immigration enforcement program 287(g) has experienced several cycles of rapid expansion and contraction during different stages in the policy's relatively brief lifetime. It is an intergovernmental program where state and local agencies sign onto agreements with U.S. Immigration and Customs Enforcement (ICE), effectively deputizing law enforcement agents to implement federal immigration policy. Using logit models and the lens of bureaucratic discretion, we find that agencies in politically conservative jurisdictions and counties with proportionally large Hispanic populations were most likely to sign these agreements and maintain them during the program's lean years. Conservative counties were even more likely to have them when they have larger Hispanic populations and during times of Republican presidential administrations. This paper puts these findings in comparative perspective and links them to the worldwide trend of democratic decline and the rise of right-wing populism in Europe and elsewhere. [ABSTRACT FROM AUTHOR]

In the United States, some states allow undocumented immigrants to benefit from in-state resident tuition policy at public colleges and universities, a benefit aimed at improving accessibility to higher education. Yet, undocumented immigrants face bureaucratic procedures and requirements that may discourage them from applying and delay or hamper their access to higher education. Building upon administrative burdens scholarship and using quantitative data from the examination of college application forms and surveys administered to undocumented immigrants, this article explores requirements representing learning, compliance, and psychological costs when this group applies for college. Findings suggest that variations in requirements may reflect states' political leanings, patterns of immigration, alternate social constructions, and organizational factors. Undocumented immigrants' perceptions show that factors associated with SSN, citizenship, residency, notarized affidavits, and lack of clear information and guidance from college websites and personnel substantially increase burdens when these individuals seek in-state tuition benefits. This study contributes to higher education scholarship by highlighting how bureaucratic procedures and administrative discretion can help achieve or prevent the attainment of policy goals. [ABSTRACT FROM AUTHOR]

A liberal-democratic society (from a political theory perspective) is self-governing in the sense that people, through their directly elected representatives, exercise sovereignty and decision-making authority. Through this process, elected officials should have the power and the responsibility to decide all policy matters. In the real world, however, this is not so easy since public policy is made by bureaucrats and not by elected officials. With the birth of the Welfare State, in fact, the question of how much control representatives elected by citizens should exercise over the Public Administration (PA) has become a topic of relevance. The presence of permanent officials in relevant administrative roles corrects some of the major shortcomings of democratic governance and contributes significantly to the success and stability of liberal democratic States. It is therefore necessary to begin a reflection that can give relevance to the normative dimension of the executive power with a deontological analysis on the role of the civil servant/public official. This paper aims to underline the importance of PA in a liberal-democratic political system and explain which are the limits of democratic legitimacy for public officials fulfilling their functions. In addition to this, an alternative approach will be proposed. A vocational model of accountability based on the neutrality of the public function and on a set of liberal values (efficiency, liberty and equality) as a healthy corrective to populism and illiberal democracies and an alternative to the democratic legitimacy. [ABSTRACT FROM AUTHOR]

Within the past two years, the COVID-19 pandemic and political intervention in higher education has highlighted the need to reconceptualize higher education administration. This work addresses the roles faculty currently serve and how their ethics guide discretion while acting as the engagement point and makes the case that the group should be characterized as street-level bureaucrats. The article uses a theoretical analysis to provide support that faculty's place as street-level bureaucrats is changing due to political and ethical demands. The article provides evidence for a redefinition of faculty's role and suggests implications for the change. [ABSTRACT FROM AUTHOR]

The Digital Markets Act (DMA) obligations will start to apply to the designated gatekeepers starting in March 2024. Its main objectives are set out in Article 1(1) as those of ensuring contestable and fair markets in the digital sector across the Union where gatekeepers are present, to the benefit of both business and end-users. However, the definition and the interpretation the Commission will provide for both objectives are far from clear. In turn, this makes future-proofing the DMA a more difficult task for gatekeepers, regulators and third parties, insofar as its obligations are construed upon one of the two stated goals depending on the provision or on both of them more generally. The paper addresses this problem by narrowing the gap between those concepts in their relationship with their underlying economic theorems. Later on, it observes the manifestations of contestability and fairness throughout the text and the regulation’s legislative process accounting for their four distinct expressions: objectives, indicators, and the legal bases for triggering the supplementary and precautionary measures of the instrument. [ABSTRACT FROM AUTHOR]

This article completes a series of three scientific publications planned by the Editorial Board of the Siberian Law Review, the Authors of which discuss the problem of administrative discretion, which is very relevant for Russian administrative legal theory and legal practice, in a question-answer format. Contrary to the opinion justified by Petr P. Serkov in the previous article about the impossibility of a fruitful study of administrative discretion without referring to the “analytical potential of the mechanism of administrative legal relations”, Yuri P. Solovey gives arguments indicating the unsuitability of this “logical structure” for studying legal realities. From his point of view, the use of this artificial and meaningless concept, without a doubt, is a violation of the well-known methodological principle “Occam’s Razor”: one should not multiply things unnecessarily. In this regard, PetrP. Serkov was asked two questions: firstly, could he conduct, within the framework of this article, an indicative analysis of a specific discretionary administrative act using the “logical structure of the mechanism of administrative legal relations”, which would make it possible to draw a conclusion about the legality (illegality ) of such an act, and, secondly, what is its relation to the principles of administrative procedures as legal means of control over administrative discretion and the need for their extensive legislative consolidation. Anticipating the answers to the questions posed, Petr P. Serkov critically analyzes the arguments of “discretionary disagreement” of the specified Author. It is concluded that the phenomenon of administrative discretion covers any managerial decision made by any official of state executive bodies and local governments in the exercise of any of the powers assigned to him. Such a vision of administrative discretion implies a significant adjustment of the method of its research, the priorities of which should be a person, his consciousness and psyche. Concerning the first of the questions asked, Petr P. Serkov, using the “analytical potential of the mechanism of legal relations”, analyzes a hypothetical situation in which a police officer performs a discretionary administrative action by stopping a vehicle. The Author argues that the named “potential” clarifies not only what administrative discretion is, but also how it is formed and what it is intended for. Answering the second question, Petr P. Serkov notes that the procedural legal regulation of the activities of state executive bodies will certainly bring positive effects to the phenomenon of administrative discretion, but it is not clear to what extent the principles of administrative procedures are able to prevent illegal administrative discretion. It should be taken into account that scientific controversy regarding the understanding of legal principles has been going on for decades without the prospect of reaching a doctrinal consensus. In general, the discussion of the essence of administrative discretion shows, according to Petr P. Serkov, the imperfection of the current state and the conceptual vulnerability of the methodology of conducting scientific research and scientific controversy.

The article analyzes the interaction between administrative discretion and the main social regulators – religion, ethics and law. It is shown that historically discretion arises as a religious institution, consisting in the trust of public authorities and their officials in prophets – people who are able to contact with the divine forces. The procedure of discretio spirituum, used in the Middle Ages to determine whether a person is a prophet or a false prophet, is described separately. The significance of this procedure is expressed in the partial secularization of discretion, that is, the assumption by church authorities that the divine injunctions can be interpreted, supplemented, or ignored not only by God, but also by the aforementioned persons (prophets). This recognizes that discretion can be both negative (negative) and positive (positive); that the amounts of discretion granted to prophets must be in direct proportion to the degree of trust in them; and that there are specific criteria according to which to establish what amounts of discretion will be granted to prophets. After many centuries, this concept of administrative discretion has remained virtually unchanged. Ethical science reproduces it almost literally: it again refers to the trust, which this time is granted to executive authorities and their officials, as well as to the degree of such trust, which determines the scope of discretionary powers and is determined by certain criteria. Legal science borrows the above theory less explicitly, but its echoes can be detected there as well. In particular, according to one of the concepts of law understanding the law embodies a distrust (degree of distrust) between the people, and since the law and discretion are usually opposed to each other, discretion is again defined as trust (degree of trust). In the conclusion the conclusion is made about the special relevance of this approach to the administrative discretion because since 2020 the trust is a constitutional category.

The article continues the discussion organized by the journal with the participation of professors Yuri P. Solovey and Petr P. Serkov on the problem of administrative discretion. The Author proposes to look at the difference between the internal content of administrative discretion and judicial discretion, which is evolutionarily incorporated in the proceedings on administrative offenses. The reader is invited to the conclusion that administrative responsibility has historically been imposed by government bodies for disobedience to the current management order. The authorized body acts on behalf of the public authority, and the responsibility imposed by it means the responsibility of a person to the government for disobedience to its internal policy. In Russia, it arose in the 1920s, when V. I. Lenin considered the people's courts weak in resolving issues of the application of public law penalties to persons who do not comply with the norms established by the Soviet government. The judicial order arose and evolved as a people's revision of the public authorities' initiative for administrative prosecution. Such a reform of administrative responsibility was carried out after the death of I.V. Stalin N. S. Khrushchev, who, trying to restore the lost trust of society in the authorities, believed that administratively punishable acts should cause condemnation not only of the authorities, but also of society. Some categories of cases of administrative offenses were assigned to the competence of the people's court. The court acts on behalf not of the public authority, but of the country as a whole. When imposing a punishment, the court declares the person guilty before the country not of an anti-government, but of an anti-social act. Administrative responsibility is evolutionarily connected with the discretion of the jurisdictional body. Its content is various social rules and values, including principles, as well as political considerations. Administrative discretion is dominated by managerial values: general prevention, ensuring public order, controllability of the masses, tax collection, implementation of state policy, etc. Judicial discretion, being realized on behalf of the country, reproduces the social norms and values of Russian society as a whole. Both legislative norms and managerial values are preserved, but become part of the general range of social norms and values, which is dominated by the universal principles of justice, reasonableness, proportionality and an adequate balance of private and public interests.

Introduction: the article is devoted to the study of issues related to the development and formation of the administrative discretion doctrine in Russian legal science, legislative regulation of administrative discretion and discretionary powers of subjects of public administration. Purpose: to present a theoretical and doctrinal interpretation of administrative discretion with regard to the specifics of activities of the Federal Penitentiary Service. Methods: our research is based on the dialectical method of scientific cognition. The article uses general scientific (analysis, synthesis, induction, etc.), private scientific and special methods of cognition (comparative legal, formal legal). Results: a general characteristic of concepts, such as administrative discretion, discretion in law and discretion (discretionary powers), is presented and logical connections between the content of these concepts in terms of their doctrinal understanding are considered. Problems of implementing administrative discretion in practice are studied. The dualism of administrative discretion in the penal system in terms of the implementation of anti-corruption measures in the field of execution of criminal penalties is revealed. Conclusion: based on the study of domestic and foreign experience, possible prospects for developing the institution of administrative discretion in the activities of public administration, including in the Federal Penitentiary Service of Russia, are indicated. The intersectoral nature of administrative discretion is emphasized. The issue of the modern role of administrative discretion in activities of the Federal Penitentiary Service of Russia, taking into account the specifics of the sphere of legal realization, is revealed.

The article continues the discussion on the topical issue of administrative discretion for Russian administrative-legal theory and legal practice, organized by the editors of the journal “Siberian Law Review” on the pages of two previous issues of the journal with the participation of P. P. Serkov and Yu. P. Solovey. The Author focuses on the state of the modern domestic doctrine of administrative discretion, the contribution of Russian legal scholars to its development, the need and possibility (including criteria and limits) of delimiting administrative discretion from other types of discretion. It is proved that the Russian jurisprudence demonstrates, contrary to the assertions of some experts, not confusion in the face of the problematic category of discretion, but ontological and methodological certainty, although sometimes reaching extremes. At the same time, there is no single Russian doctrine of discretion, there are many such doctrines, and some scholars have the right to claim that specific doctrines are associated with their names. The Author draws attention to the fact that discretion in general and administrative discretion in particular are interdisciplinary (interscientific) categories, so they must first of all be rid of the semantic and meaningful “layers” of other sciences. The sooner a pure theory of discretion appears, the more mistakes and risks will be insured against by legal science and law enforcement practice. In order to avoid terminological confusion and preserve the subject matter of the study, it is absolutely important to distinguishfour concepts: 1) administrative discretion; 2) judicial control over administrative discretion; 3) judicial discretion; 4) judicial discretion in the exercise of judicial control over administrative discretion. These concepts have a certain connection with each other, however, they designate different (partly even by their branch affiliation) categories, phenomena, processes and institutions. As a conclusion, it is indicated that the motives of each discretionary decision of the public administration must sooner or later (better sooner than later) be made public. To make this a reality, legal science needs to develop and offer effective legal guarantees for ensuring the rights of citizens and their associations when public authorities exercise their discretionary powers.

Administrative discretion is an important construction of modern administrative law, the formation of which in many respects can be viewed as a “struggle” to limit the discretionary powers of the subjects of state administration. It is well known that good governance would be impossible without administrative discretion. There are four stages in the development of the modern theory of administrative discretion and each stage was devoted to one aspect of this one but these stages did not coincide chronologically and developed in parallel. They had a different methodology, which was used by the founders and followers of the approaches prevailing at each stage. The first stage started in France and formed by the 18th century. This related to the concept of prudent governance exercised prudent officials who were ruled by enlightened monarch. Their decisions were not reviewed by the courts. The principle of reasonable is the modern result of this stage – an absolutely unreasonable administrative act is null and void. The second stage developed in parallel with the first one but formed by the 19th century. Administrative discretion was formed as legal concept on this stage, and it was presented as free discretion, which also could not be a subject to judicial review. The third stage, characterized by competition between administrative justice and free discretion, took place at the end of the 19th and the middle of the 20th. Judicial possibilities for reviewing discretionary acts gradually expanded, criteria for evaluating such acts were created. These criteria were incorporated into the laws and legal judicial positions after the fourth stage began. The creative side of discretion has become a very important part of this legal construction, administrative discretion at this stage is defined as a way of laws concretizing. Nowadays, the third and fourth stages are developing in parallel in Russia. It should be noted that the Russian administrative law doctrine was formed as a common doctrine Civil Law system. Russian authors always used the methodology of Civil Law system, developed it, but they paid attention to the specifics of our administrative law, our governing and historical development. Nevertheless, Russian doctrine needs more research in order to create more legally formalized administrative discretion. As a result, the legislature and courts should receive academic decisions suitable for implementation.

We know that deep scientization (DS)—the misrepresentation of political issues as technical/scientific ones best handled by experts—can unduly limit public deliberation and lead to policy misdesign. Yet, tools for investigating DS remain lacking. This article develops a new approach to diagnosing DS that works by identifying where experts have used their discretion to construct policy claims that contravene existing, shared epistemic standards. This approach's value is demonstrated through a case study of U.S. chronic fatigue syndrome (CFS) policy. The study shows that, whereas government experts originally developed CFS as a research construct, they have since used their discretionary power to recast CFS as a serious disease requiring new policy interventions. This epistemically unjustified transformation of CFS has limited public discussion of important value‐laden policy questions and arguably yielded poor policy outcomes. The approach developed here can also be used to uncover DS in other policy areas. Related Articles: Carlsson, Lars. 2017. "Policy Science at an Impasse: A Matter of Conceptual Stretching?" Politics & Policy 45(2): 148–68. https://doi.org/10.1111/polp.12196. Lemire, Sebastian, Laura R. Peck, and Allan Porowski. 2023. "The Evolution of Systematic Evidence Reviews: Past and Future Developments and Their Implications for Policy Analysis." Politics & Policy 51(3): 373–96. https://doi.org/10.1111/polp.12532. Luján, José Luis. 2023. "Evidence‐based Policies: Lessons from Regulatory Science." Politics & Policy 51(4). https://doi.org/10.1111/polp.12543. [ABSTRACT FROM AUTHOR]

Copyright of Lex Humana is the property of Lex Humana and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

This article continues the series of scientific publications planned by the editors of the Siberian Legal Review, the Authors of which analyze the problem of administrative discretion (discretion), which is very relevant for the Russian administrative law theory and practice, in the “question-answer” format. In the domestic legal literature, one can find various definitions of administrative discretion; they are also contained in the legislation of a number of post-Soviet states. Pointing out the shortcomings of some definitions of the named concept, Yuri P. Solovey proposes to define administrative discretion by the choice made by public administration of a variant of solving a managerial issue in the form of an administrative act (regulatory or individual), corresponding, in its opinion, to the requirements established by law for administrative acts, in conditions of insufficient legal certainty of goals, grounds, conditions, content, situation, place, objects (addressees), subjects, procedure for registration, procedure and (or) terms (time) for the adoption of an administrative act. In response to the question about the appropriateness of such an approach to understanding the concept under consideration and the call to formulate his own definition of administrative discretion, Petr P. Serkov agrees with the critical assessments of the mentioned definitions of the concept of discretion. At the same time, in his opinion, the study of the phenomenon of administrative discretion does not involve the interpretation of this phrase, as a result of which the other definitions of discretion are born, but, first of all, the clarification of its content. The latter is impossible without referring to the logical construction of the mechanism of administrative legal relations, since discretionary decisions are filled to the maximum extent with the immutable logic of the emergence and development of this mechanism, available for reproduction and control. Meanwhile, the analytical potential of this construction, unfortunately, remains unclaimed in the theory of modern administrative law. Petr P. Serkov concludes that administrative discretion functions in the naturalness of legal reality, formed by legal regulation, including due to the ideological content of the norms of administrative law, and their state mental coercion as an unalternatively necessary component of legal regulation.

The study purpose is to analyze the principles of administrative procedure and proceedings established in the Administrative Procedural Code of the Republic of Kazakhstan, as well as to identify recommendations for their improvement in legislation and in law enforcement practice. The concept and principles of administrative procedure and proceedings are analyzed, and deficiencies in the legal regulation of administrative procedure and proceedings principles are revealed. The study proceeds from the assumption that the existing set of principles of administrative procedure in the Republic of Kazakhstan, set out in the new Administrative Procedure and Processual Code of the Republic of Kazakhstan, limit the possibilities for protecting the rights of citizens in the administrative and procedural order. Being limited to the existing set, they significantly narrow the possibilities for improving administrative and legal norms in the future. Based on the review of specialized foreign legislative regulation in the field of administrative procedure, the study gives grounds to say that when developing a new act, the Kazakh legislator did not use positive foreign experience. The experience of Kazakhstan can be used in other countries that are faced with the need to reform or develop administrative procedural regulations. [ABSTRACT FROM AUTHOR]

This material opens a series of scientific publications planned by the editors of the Siberian Law Review journal, the Authors of which analyze the problem of administrative discretion (discretion), which is very relevant for Russian administrative legal theory and law practice, in the “question-answer” format. The scientific, theoretical and practical significance of the noted problem is predetermined by the fact that the exercise of discretionary powers by the public administration (as opposed to powers strictly bound by law) is fraught with the greatest threat to the rights, freedoms and legitimate interests of citizens, the rights and legitimate interests of organizations. The purpose of the study is to clarify issues related to the concept and essence of administrative discretion, its regulatory legal framework, forms of implementation, ways to establish the limits of discretion of public administration, criteria for assessing the legality of discretionary administrative acts, judicial and agency control over administrative discretion. The subject of the research is normative legal acts, legal principles, administrative and judicial acts, scientific works of Russian and foreign legal scholars. The hypothesis of the study is that, despite the abundance of scientific publications on administrative-discretionary topics, the domestic doctrine of administrative discretion is a motley mixture of judgments that do not agree with each other, often divorced from the needs of administrative and judicial practice, characterized by the absence of a single categorical apparatus. According to Yuri P. Solovey, an important, if not the most important section of administrative discretionary issues, are the limits of judicial control over administrative discretion, which has practically fallen out of the field of view of Russian scholars, despite the fact that it has been thoroughly studied abroad for more than a century and a half. From the point of view of Petr P. Serkov, the domestic science of administrative law has not yet properly answered three fundamental questions, namely: what is administrative discretion, what is it intended for and how is it carried out. The Authors of the publication are unanimous that such a “doctrine” of administrative discretion does not contribute to the development of legislative solutions to bring such discretion to the standards of a legal, democratic state. In the process of research, dialectical, formal-logical, formal-legal, comparative-legal methods of cognition, the method of interpreting law, analysis of materials from administrative and judicial practice are used. The Authors attempt to streamline the categorical apparatus of the theory of administrative discretion, as well as to formulate its main provisions and some proposals for improving the current legislation.

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In a welfare state, the necessity for a certain level of discretion is widely acknowledged. Discretion plays a crucial role in law enforcement practices and is essential for the effective administration of justice. Within international Criminal Justice Systems, prosecutors have a pivotal responsibility in upholding the rule of law. Given their position within the executive branch, prosecutorial discretion becomes imperative. It is vital to observe that discretion itself is not inherently damaging; however, unchecked and absolute discretion can lead to adverse outcomes. The goal should not be the elimination of discretion, but rather its structured implementation. Within the realm of the criminal justice system, where both the law enforcement agencies and the court possess considerable discretion in pursuit of justice, it follows that the prosecution should also possess a degree of discretion. Without equipping the prosecution with essential discretionary tools, the Punjab Criminal Prosecution Service would be unable to effectively fulfill its role in criminal justice system. Consequently, the time has come to empower the prosecution with the necessary discretion it requires, especially the discretion to decide whether to prosecute or not which stands as a vital prerogative that prosecutors must possess to uphold the justice. [ABSTRACT FROM AUTHOR]

The paper analyzes the causes of the failure of Russian law to prevent illegal logging in its effort to protect forests. It does not attempt to review all its rules and regulations. Instead, it focuses on one significant theme: the way how businesses misuse Russian law to conduct the destruction of forestry resources by applying so called ‘salvage clearings’. The process of authorizing and conducting salvage clearings is regulated by the Russian Forest Code, administrative regulations, and judicial interpretations. The analysis of this law leads to the conclusion that Russian law has good purposes and is sufficiently well defined to prosecute and punish its violators. However, the law is not enforced in the way it was meant to. The legal provisions intended for the protection of forests are used for their destruction. Illegal logging takes the form of an activity approved by forest officials. One reason for it is governmental corruption. The existing forestry regulations are not always clear and well-defined, but they provide a sufficient regulatory framework that can be used effectively against the abuses of salvage clearings. A major legal problem lies not so much in the content of forestry law, as in an overall lack of a general effective mechanism to control administrative discretion. In practice, there are no administrative checks on the way the salvage clearings are carried out. Without a mechanism of control, any administrative law, however well-defined, is open to abuse. An effective mechanism cannot exist without a society that values forest resources beneficial not only for humans but also for other species.

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Increased administrative discretion for human resource and financial management is commonly seen as a key component of efficient service delivery. However, the directive attitude of some central government officials in Tanzania undermines the administrative discretion of local councils to implement approved local plans and budgets. Using a case study of two local councils in Tanzania, this study investigated the influence of decentralization on administrative discretion and decision space. The findings show that local councils have little administrative discretion and decision space over human resources, financial management, and service delivery. The study calls for a comprehensive review of decentralization policies and local government legislation to address the allocation of powers and decision space of the institutional capacity of local councils to provide local services. Their roles and responsibilities should also be specified in the national constitution to safeguard them from the encroaching “directive culture” of central government officials.

The issues of criteria for the nullity of administrative acts are considered, the ratio of an illegal and invalid act, as well as a null and void act, analyzed, the possibility of administrative discretion in determining an invalid administrative act is analyzed, the role of vague legal concepts when an administrative act is declared invalid is demonstrated. The Author uses a comparative legal method, including the analysis of the practice of Germany, Great Britain, South Africa, Canada, Japan, South Korea, Russia and other countries. Special attention is paid to the laws on administrative procedures adopted in the post-Soviet territory and the influence of the German doctrine on this process. It is concluded that for the continental legal order the most preferable way to formalize the criteria for the invalidity of an administrative act are laws on administrative procedures or their analogs, while in the common law states, legal doctrine and judicial practice are of great importance. At the same time, many countries avoid recognizing acts as null and void, preferring the construction of their voidability. This is related to ensuring the stability of public administration, the predictability of administrative activities, and the protection of legitimate expectations. In any case, the theory of the reality of the administrative act is prevailing, and nullity is rather viewed as an anomaly. Therefore, only acts that are adopted with the most significant violations, which do not allow talking about the fair consequences of their adoption, are considered invalid. The illegality of an act does not automatically entail its nullity. A similar trend can be traced in Russia, although individual norms of law and practice of courts indicate the possible formation of a doctrine of the invalidity of an administrative act in the Russian legal system. Insignificant acts do not give rise to consequences from the moment of their adoption, legally they do not exist, and nothing can generate anything. With this approach, the courts only fix the criterion of invalidity without a dispute about law. Insignificant acts should be distinguished from contested ones, the latter may turn out to be illegal, but for a number of reasons (for example, protection of trust) the fact of their existence is confirmed along with their consequences.

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Copyright of Revista Digital de Derecho Administrativo is the property of Universidad Externado de Colombia and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Revista Digital de Derecho Administrativo is the property of Universidad Externado de Colombia and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of A&C - Administrative & Constitutional Law Review - Revista de Direito Administrativo e Constitucional is the property of A&C - Revista de Direito Administrativo & Constitucional (Instituto Bacellar) and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

One of the outcomes of the 2015–2016 migration crisis in the EU is the urgent need perceived to enhance the effectiveness of forced return procedures, including administrative expulsion. However, given the core human rights obligation of non-refoulement, the push for effectiveness needs to be balanced against procedural safeguards preventing “overly effective” proceedings. The example of the Czech Republic shows that an institutional arrangement could significantly undermine the effectiveness of the proceedings when paired with undue conduct of the administration, such as the improper risk of a refoulement assessment. The article argues that the key to effectiveness does not necessarily lie with speedy procedures, but rather with a pragmatic design of the procedures, as can be concluded from a comparison of the Czech and German approaches.

This article aims to analyze the institute of administrative discretion from the perspective of the Constitutional State of Law, comparing its application with the democratic system. Discretion is a relevant institute for Administrative Law, even in the face of the impossibility of the law to regulate all factual situations. And it must be understood from the perspective of legality and the administrator's power-duty to find the best possible solution for the specific case. In the Constitutional State of Law, administrative discretion cannot extrapolate to arbitrariness or misuse of power and must be interpreted based on the set of constitutional principles and rights. [ABSTRACT FROM AUTHOR]

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In Japan, the Court often examines the technical aspects of administrative discretion if there was a proper decision-making process. Such control could rely too much upon each judges’ viewpoint, which elements in the whole process of administrative discretion have critical gravity to evaluate (kōryo kachi). The pre-war legal scholars suggested the best way to increase judicial protection on the citizens’ rights endangered by administrative discretion. The need to establish robust legal theory based on it the Court guarantees the balance between smooth enactment of administrative measures and maintenance of social justice is still enormous. Administrative guidance was, for a long time, out of the scope of judicial control. This institution is Japan’s original so that its implication well exceeds the standard understanding of mere instruction in other legal cultures. The Japanese Court acknowledges the existence of “forced consent” behind it more frequently in recent years.

Purpose – This paper aims at comparing and contrasting the Ao Man-long scandal with the Ho Chio-meng case in Macau, drawing lessons from the two events and casting lights on the literature on corruption scandals. Design/methodology/approach – The study used documentary research and interpretative and analytical approaches. Findings – The two cases show considerable administrative discretion on the part of the principal officials involved, and remedial measures along the line of having more rigorous and frequent internal auditing may be necessary. Originality/value – Original analyses were conducted together with literature review and documentary research. This paper would be of interest to scholars and practitioners concerned with how Macau combats corruption.

How bureaucrats exercise administrative discretion is an enduring question in urban planning and democratic governance. Conflicts between urban planners’ professional recommendations and community stakeholders’ demands play out especially in the sustainable development context, where planners confront value conflicts between environmental, economic, and social goals. This article investigates the sources of community resistance to sustainable development and the discretionary strategies planners employ to persuade communities towards a more sustainable future. Utilizing a descriptive case study design, we examine four Colorado cities experiencing growth and community resistance to sustainable development practices. We find that while planners face community resistance from a multitude of sources, including developer pressures, NIMBYism and density concerns, and distrust of the planning profession, planners also work within their discretionary space using interdepartmental coordination, communication and outreach, data and evidence, rule changes, and neutral stewardship to encourage sustainable development. Implications for planning practice and future research are discussed.

For some, revocation of an administrative decision arises doubts, for others, it is a legal measure ensuring that public administration entities are able to respond to changing circumstances and adopt not only legitimate, but also fair decisions by striking a balance between private and public interests. This paper aims to analyse the choice of Lithuania with respect to the implementation and application of the public administration entities right to revoke its previously adopted administrative decision. In order to achieve this goal, the results of analysis of the role of the principle of legality and administrative discretion in the decision-making process, legal regulation of public administration and case-law are revealed. The analysis will show that there is room for the possible systematisation of the administrative procedures, aiming to ensure that public administration entities are able to respond to the ongoing changes in order to fulfil the objectivities based on which the particular public administration entities were established.

The paper deals with the conception of public rights, their attributes, and a definition of the typical groups of public rights. The author analyses which duties of public authorities may be enforced before the court. The author further shows when individual persons have no legal claim to fulfilment of duties of public authorities. The paper analyses the evolution of public rights within the area of public administration and the possibilities of enforcement of these rights. [ABSTRACT FROM AUTHOR]

There was every indication that 5th turn appointments were to be the easiests in terms of motivation and therefore the most difficult to misrepresent their compulsory motivation. For two reasons: they are positions with an essentially judicial profile (no mixed with governing functions) and their awarding falls within a single criterion: professional excellence. However, the practice carried out by the General Council of the Judiciary shows that the compulsory motivation can be openly dodged. And, unfortunately, more often than not with the argumentative help provided by the same Supreme court doctrine.