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The every ten years reviey of the municipal master plan is due a legal provision in the City Statute. This procedure implies minimal intervention of the municipal manager, who inaugurates the process of revision and conducts its processing, making available to the community, for evaluation and voting, the proposals for changes to be implemented. The administrative discretion is limited to the conduct of the instead of to the merits of the review. The review itself will be the result of decisions arising out of public hearings and, mainly, from popular participation. Therefore, it is indispensable to make available to society, in a clear and complete manner, all the communication tools necessary for the assessment of the technical data that would justify the change of the master plan and the comparison of what is intended to change with the already existing norms. Any different leading implies in dishonest acting, witch is doomable, since in the urban relation the citizen is the main actor of the revision and the main recipient of the norm.

O presente artigo propõe uma discussão a respeito do tema da judicialização das políticas públicas a partir do direito à Educação Infantil, com o objetivo de analisar conceitos e conteúdos constantes na produção bibliográfica relacionados à temática. A partir da produção existente sobre tema, discute os conceitos de justiciabilidade do direito e judicialização, suas causas e principais obstáculos, dentre os quais o princípio da separação dos poderes, a discricionariedade administrativa e a teoria da reserva do possível. Discute, ainda, a noção do mínimo existencial e as possibilidades de interferência do Poder Judiciário nas políticas educacionais, concluindo por sua necessidade nos casos em que o direito à Educação Infantil não é garantido pelos demais poderes. Aponta, por fim, a necessidade de pesquisas empíricas que possam averiguar quais os limites à atuação do Poder Judiciário nas políticas educacionais.

Achieving a proper balance between administrative discretion, which promotes efficient and effective governance, and oversight of that discretion to ensure political responsiveness has been...

To place the administrative state into perspective, I first present the theoretical justifications for America’s traditional form of government followed by the theoretical justifications for the ad...

Administrative discretion means that administrative agencies can exercise their rights based on their own judgment and actual conditions when dealing with matters that are not authorized by the law or have not made detailed provisions.The existence of administrative discretion is not only the result of the expansion of administrative power,but also to adapt to administrative differences in different regions and departments,and to maintain social fairness and justice.However,the existence of rights leads to abuse and corruption,which requires the legislature to control the problem of excessive discretionary power from the source. The administrative law enforcement agency further improves the administrative reconsideration,strengthens the selection and supervision of the staff of the administrative agency,and the judicial agency improves the judicial review.

La AUH (Asignación Universal por Hijo), en su diseño y estructura, constituye un mecanismo igualador de oportunidades, ya que no sólo garantiza el estipendio de dinero en sectores vulnerables intentando romper el ciclo de transmisión de la pobreza; sino que procura mejorar la calidad de vida de los beneficiarios en materia de salud, con los controles sanitarios correspondientes, y de educación. Pero cuando se traslada la AUH a un contexto de encierro, se denotan vacíos en el diseño y discrecionalidad administrativa en su otorgamiento e instrumentalización, que impiden el efectivo acceso de los destinatarios al programa en algunas regiones o limitan los efectos pretendidos por dicho programa en otras regiones subnacionales, donde los sujetos beneficiarios pueden gozar del acceso. Es por ello que en este trabajo de diseño cualitativo con recolección de información jurisdiccional, doctrinal, normativa y empírica, a través de observación participante y entrevistas semi-estructuradas, se pretende contestar los siguientes interrogantes: ¿Cuáles son las principales problemáticas que este contexto plantea para este programa?; ¿Se debería cualificar un régimen diferencial para este supuesto?. The UAC (Universal allocation per child), within its design and structure, constitutes an equalizing mechanism of possibilities, as it not only guarantees the stipend of money for vulnerable sectors by trying to break the cycle of poverty transmission, but seeks to improve the quality of life for the beneficiaries in health, with the corresponding sanitary controls, and education. However, when UAC is taken to a context of confinement, gaps are denoted in the design and administrative discretion of grant and instrumentalization, which impede the effective access of the recipients to the program in some regions or limit the effects intended by it in other subnational regions where the beneficiary subjects may enjoy access. That is why in this qualitative design work with a collection of jurisdictional, doctrinal, normative and empirical information, through participant observation and semi-structured interviews, which intends to answer the following questions: What are the main issues which this context poses for the program? Should a differential regime be qualified for this scenario?. Fil: Rezzoagli, Luciano Carlos. Universidad Nacional del Litoral. Instituto de Humanidades y Ciencias Sociales del Litoral. Consejo Nacional de Investigaciones Científicas y Técnicas. Centro Científico Tecnológico Conicet - Santa Fe. Instituto de Humanidades y Ciencias Sociales del Litoral; Argentina Fil: Mallo, Carla. Universidad Nacional del Litoral. Facultad de Ciencias Jurídicas y Sociales. Centro de Investigaciones de la Facultad de Ciencias Jurídicas y Sociales; Argentina

This book analyses residency, a form of municipal membership that plays a strategic role in administrative processes in Italy. Residency is a two-faced juridical status: a means for exercising rights and moving freely within a state territory and, at the same time, a tool of control that operates through identification and registration. Gargiulo investigates residency both historically and theoretically, showing that the status of resident is a special kind of border, namely, a status border, which draws the lines of local citizenship. By explaining that the mechanisms of exclusion from residency work as administrative barriers, and showing their aims and effects in terms of civic stratification and differential inclusion, this book contributes to the debates on local citizenship, borders, and discretionary power.

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.

This paper presents a new form of discretion that deals with subliminal (personal) preferences, which are present in discretionary decision-making (where the mental, cognitive functions of public servants, mixed with their character and “dressed” with sophistic, logically well-explained and legally allowed reasons are present). This paper presents employee discretion that could be a denominator of the public employees’ will to do or not to do something, to give lesser or greater weight to something. The power to choose is hence not only possible in legal frameworks but also outside of them. So far, informal power has been viewed in the law as the illegal one, although there are many informal, especially personal elements involved in the legal decision-making that are never brought to light. This paper offers a promising approach to how decisions can be similar in similar matters, despite their differences in personal backgrounds, cognitive capabilities or emotional variances. This can be done if Bayes’ theorem is used. Probability can here be established based on how much we believe something after we have seen the evidence; this depends not only on what the evidence shows but also on our pre-existing preferences (pre-investigation, prior probability or just a prior) or weights that affect our view on evidence or how much we believed in the evidence from the start. By assessing priors, decision-makers can become more comfortable with probability and uncertainty, and at the same time, the “echo chambers” of unfounded claims can be avoided. This way, subjective preferences could be known to others, while the principles of equality and equity could be raised to a higher level. Further development of employee discretion is based on the same grounds as this type of discretion – on our personal (in)actions.

Judicial review of administrative decisions enforces a set of legal norms that confine the scope of administrative powers and constrain their exercise. One way of organising these legal norms is to divide them into three broad categories: norms concerning procedural steps such as hearings, norms concerning the reasoning process that leads to the decision, and norms concerning the content and substance of the decision itself (Cane 2011, 140, 180). This chapter surveys the comparative administrative law literature on the second of these categories: legal norms governing administrative reasoning processes. In doctrinal terms, a more common designation of judicially enforced norms confining and constraining administrative power is as grounds of review, standards of review, or simply principles governing the administration. The jurisdictions surveyed in this chapter all categorise their grounds, standards or principles in different ways. One of the advantages of the categories adopted here is that they facilitate comparison between jurisdictions. Scrutiny of reasoning processes is used in reviewing exercises of discretion. This can be understood as an answer to the tension between respecting discretion and upholding the rule of law (Mashaw 2017). Administrative discretion means a measure of decisional autonomy for administrative decisionmakers. It is necessary if the modern administrative state is to serve effectively the public interest objectives entrusted to it; and the fact that the legislature has chosen to confer discretion is a further good reason for the courts to respect it. In all of the systems surveyed, judicial review is a supervisory power that does not extend to courts substituting their own judgment for the administration’s exercise of discretion. On the other hand, however, to treat discretion as unfettered and as a lawless void would be inconsistent with courts’ responsibility to uphold the rule of law by scrutinising the exercise of public powers. The problem, then, is to identify an acceptable basis for controlling the exercise of discretion. Scrutiny of reasoning processes is the answer. Such scrutiny serves to structure the exercise of discretionary power rather than to confine its scope (Cane 2011, 172): reasoning process flaws render a decision unlawful even though it was within the scope of the power. Such scrutiny therefore both respects and controls discretion. However, the underlying tension remains, and renders the law in this area inherently unstable. That seems a likely explanation for the range of different approaches to reasoning processes that will be seen in this survey. The comparative method I adopt in this chapter is to survey the administrative law literature on a range of jurisdictions, from the perspective of three jurisdictions whose law is similar on this topic: England and Wales, Australia, and New Zealand (for simplicity, I will refer to these three as the English law jurisdictions). The narrow focus on one single category of ground or legal norm makes it possible to consider a fairly broad range of jurisdictions. The chapter deals in the greatest depth with Canada and the United States, along with the three English law jurisdictions, but it further touches on South Africa, Germany, France, and China. These jurisdictions were chosen as representative of some of the major groupings (eg civil and common law, using specialist administrative courts and general courts, Eastern and Western, liberal and authoritarian, different governmental structures), and because an adequate volume of literature in English exists for them. None of the comparator jurisdictions is treated in any comprehensive fashion. Instead, each is mentioned only for one or more features of its law on reasoning processes that differs from the English law jurisdictions in an interesting way. The purpose of this type of comparison is illumination rather than the riskier purpose of promoting transplantation or harmonisation: considering the range of approaches to scrutiny of reasoning processes casts light on the role and function of these controls, and on the significance of our own jurisdiction’s doctrinal solutions. I have found this exercise very enlightening, particularly in highlighting different distinct modes of ensuring some respect for administrative discretion. Yet there is a great dearth of comparative sources on review of reasoning processes: virtually no studies are devoted specifically to this topic, and treatments of the topic in broader studies are often very brief. One of my main messages, therefore, is that there is much scope for in-depth comparative research on this topic. This chapter briefly outlines the law on reasoning processes in the English law jurisdictions; traces some divergences in the details of the law among these three, and with other jurisdictions that share a similar approach; and then considers jurisdictions with significantly different approaches. The latter are where there is no review of reasoning processes; where scrutiny of reasoning processes is available on a much broader basis; where there are possibly different approaches to the standard of review; and where there has been a shift away from review of reasoning processes to assessment of outcomes. Towards the end, there is brief consideration of possible correlations with system types, and the chapter concludes with some reflections.

This chapter argues that the rationale for a democratic state is to curb a form of subjection to the merely unilateral and legislative will of others. It describes bureaucratic unilateralism, which is the just and effective administration of the modern state risks that reproduce the problem within the state itself by demanding the delegation of a form of quasi-legislative discretion to administrators. It also shows how bureaucratic unilateralism in the privatized state is unavoidably transferred to private actors. The chapter argues the solution or mitigation of bureaucratic unilateralism through the direct application of certain standards of legitimation directly to the exercise of quasi-legislative, administrative discretion. It discusses the requirements of standards, which imply that the delegation of relevant discretion be validly authorized by a democratic and indicate a neat separation between contract and office in order to support officeholders' commitment to implement the law.

La incorporación de los conceptos jurídicos indeterminados en la normativa administrativa y su relación con la discrecionalidad, se constituyen en temas de mucha actualidad y atención para el Derecho Administrativo. En este estudio se busca sistematizar su discusión doctrinal y analizar la inclusión de estos conceptos en la legislación. En términos generales abordaremos el instituto jurídico de la discrecionalidad administrativa, la doctrina de los conceptos jurídicos indeterminados y la evolución de la jurisprudencia contencioso administrativa costarricense en esta materia. Este tema es de relevancia para los operadores jurídicos, tanto para el legislador en el procedimiento de formación de la ley, como para los jueces contenciosos en su función de contralores de legalidad de la actuación administrativa. The incorporation of indeterminate legal concepts into administrative regulations and their relation to discretion portrays topics of great relevance and consideration for Administrative Law. This study seeks to systematize doctrinal discussion and analyze the inclusion of these concepts into legislation. In general, we will address the legal norm of administrative discretion, the doctrine of indeterminate legal concepts and the evolution of Costa Rican administrative litigation jurisprudence regarding this matter. This issue is greatly relevant for legal operators, both for the law makers in the procedure of establishing the law, and for judges of contentious procedures in their role as comptrollers of the legality of administrative actions. UCR::Vicerrectoría de Investigación::Unidades de Investigación::Ciencias Sociales::Instituto de Investigaciones Jurídicas (IIJ) UCR::Sedes Regionales::Sede de Occidente UCR::Vicerrectoría de Docencia::Ciencias Sociales::Facultad de Derecho

Italy has been heavily affected by the COVID-19 pandemic. National and subnational authorities have introduced several measures to tackle the resulting crisis, including social distancing and restrictions on economic activities. However, as we will show in this contribution, such measures have sometimes resulted in uncertainty concerning the allocation of decision making powers along the central-local government continuum and regarding the exercise of administrative tasks by public authorities, thus producing conflict and variation within the policymaking and policy-delivery processes in Italy. To show this, we review the relevant events that occurred during the pandemic in the country in light both of the literature on centralization and discretion and of the principles shaping the Italian legal system. Our analysis, based on a dialogue between political science and public law, allows us to read the Italian case as a mix of inadequate institutional coordination and insufficient and unclear central guidelines which ultimately produced uncertainty, which together had a direct impact on policymakers, policy-deliverers, and citizens in general. ?? ????????????????????????????????????,????????????????,?????,?????????????,?????????????????????,??????????????,?????????????????????????????,?????????????????,??????????????,??????????????????????????????????,????????????????????????????????????????,?????????,?????????????????????? Resumen Italia se ha visto muy afectada por la pandemia de COVID-19. Las autoridades nacionales y subnacionales han adoptado varias medidas para abordar la crisis resultante, incluido el distanciamiento social y las restricciones a las actividades economicas. Sin embargo, como mostraremos, tales medidas en ocasiones han sido portadoras de incertidumbre en cuanto a la asignacion de poderes de decision a lo largo del continuo gobierno central-local y el ejercicio de tareas administrativas por parte de las autoridades publicas, produciendo asi conflictos y variaciones dentro de la politica. y procesos de ejecucion de politicas activados. Para mostrar esto, reconstruimos los hechos relevantes ocurridos durante la pandemia a la luz de la literatura sobre centralizacion y discrecion, asi como de los principios que configuran el sistema legal italiano. Nuestro analisis, basado en un dialogo entre ciencia politica y derecho publico, nos permite leer el caso italiano como una mezcla de coordinacion institucional inadecuada y claridad de directrices centrales insuficiente que finalmente produjo incertidumbre, afectando asi a los responsables politicos, a los responsables de las politicas y a los ciudadanos. en general.

The chapter analyses the most significant aspects of the evolution of the discipline of administrative action and relations between public administration and citizens in Italy, over the last 50 years. The changes concern the conception of the public interest and administrative discretion, the implementation of the principle of legality, the centrality of the administrative procedure, the wider use of powers and acts of private law, the rules designed to allow greater efficiency in the exercise of various types of control of private activities, the “new” rights (participation in the procedure, transparency of public administration, the right of access), and the civil liability for unfair damages. The author points out that there are still shortcomings and contradictions in Italian administrative law, but that it is deeply changed and improved, because it is more respectful of the values of the Italian Constitution and of European Union law.

Empirical study of administrative decision-making shows that the power exercised by public officials is only loosely controlled by statutory law. Political theorists have traditionally viewed this discretion quite negatively, as a violation either of the rule of law or the principle of democratic legitimacy. This chapter presents a defense of administrative discretion, on the grounds that it is not just inevitable; it makes an important contribution to the quality of public administration. Both legislative and judicial strategies to reduce administrative discretion have failed or had perverse consequences. The best approach to reducing the potential for abuse of power has been through the development of a “rule of law” culture within the executive branch.

Redefinition of the Discretionary ActRESUMO: Por meio do método hipotético-dedutivo, o artigo aborda a discricionariedade do ato administrativo, a partir da revisitação da matéria lastreada na crítica à supremacia do interesse público. Ademais, o artigo visa demonstrar que o ato administrativo sujeita-se à controlabilidade jurisdicional, como meio de preservar, além da legalidade, a juridicidade dos atos, sem prejuízo da manutenção e respeito à independência dos Poderes da República. Por certo, não significa dizer que a intervenção e decidibilidade jurisdicional devam se sobrepor por absoluto à discricionariedade administrativa (conveniência e oportunidade do Administrador Público), mas é justamente essa intervenção que poderá, nesse aspecto, fortalecer a democracia.Palavras-chave: Discricionariedade do ato administrativo; Controlabilidade jurisdicional; Crítica à supremacia do interesse público.ABSTRACT: This paper approaches the discretion of the administrative act through the hypothetical-deductive method by revisiting the matter based on the criticism to the supremacy of the public interest. Furthermore, the text aims to demonstrate the subjugation of the administrative act to the judicial controllability as a mean of preserving not only the legality, but also the act’s juridicity, without undermining the subsistence and respect to the Republic’s Branches of Power. Indeed, it does not mean to state that judicial intervention and its judgement must overlap the administrative discretion (opportunity and convenience analysis), it’s precisely this intervention that can strengthen democracy, though.Keywords: Judicial controllability; Criticism to the supremacy of the public interest; Discretion of the administrative act.Data da submissão: 31/01/2020Data da aceitação: 05/06/2020

RESUMEN El concepto del precedente administrativo es una institución jurídica reciente para el ordenamiento normativo colombiano, y su incorporación legal es producto de la jurisprudencia de la Corte Constitucional de la última década, que impulsó al legislador a añadir esta figura por medio de la Ley 1340 de 2009 -Ley de protección de competencia- y la Ley 1437 de 2011 -Código de Procedimiento Administrativo y de lo Contencioso Administrativo-. En la actualidad, esta concepción legal representa grandes desafíos tanto teóricos como pragmáticos, ya que al otorgarle fuerza vinculante a las decisiones adoptadas previamente por la administración, con el ánimo de aplicar uniformemente la misma decisión cuando se presente una similitud de circunstancias fácticas y jurídicas, les permite a dichas entidades ser directamente una fuente de Derecho, y con ello, generar todas las controversias que tal actuación implica. ABSTRACT The figure of the administrative precedent is a recent legal institution for the Colombian legal system, its legal incorporation is the product of the last decade of Constitutional Court's jurisprudence, which had impelled the legislator to incorporate this legal category in Law 1340 of 2009 -Competence Protection Law- and Law 1437 of 2011 -Administrative Procedure and Administrative Litigation Code-. This category currently represents essential theoretical and pragmatical challenges because it gives binding force to the administrations' past decisions to apply, in a uniform way, the same verdict when it has similar factual and legal circumstance. It allows these entities to be a direct source of law, and with it being able to generate all the controversies that it implies. RESUMO O conceito do precedente administrativo é uma instituição jurídica recente para o ordenamento normativo colombiano, sua incorporação legal é produto da jurisprudência da Corte Constitucional da última década, que impulsionou ao legislador a adicionar esta figura através das Leis 1340 de 2009 -Lei de proteção de concorrência- e 1437 de 2011 -Código de Procedimento Administrativo e do Contencioso Administrativo-. Esta concepção legal na atualidade representa grandes desafios tanto teóricos quanto pragmáticos, pois ao outorgar-lhe a força vinculante às decisões adotadas previamente pela administração com vista a aplicar uniformemente a mesma decisão quando se apresente uma similitude de circunstâncias fáticas e jurídicas, lhes permite a ditas entidades ser diretamente uma fonte de Direito, e com isto, gerar todas as controvérsias que esta atuação implica.

Within the American system of shared power among institutions, the executive branch has played an increasingly prominent policy role relative to Congress. The vast administrative discretion wielded by the executive branch has elevated the power of the president. Republican and Democratic presidents alike have employed an arsenal of administrative tools to pursue their policy goals: high-level appointments, administrative rule making, executive orders, proclamations, memoranda, guidance documents, directives, dear colleague letters, signing statements, reorganizations, funding decisions, and more. Presidents Obama and Trump employed most of these tools in an effort to shape the implementation and outcomes of the Affordable Care Act (ACA) during its first decade. This article focuses on the Obama and Trump administrations' use of comprehensive waivers to shape ACA implementation. The Obama administration had mixed success using waivers to convince Republican states to expand Medicaid. Compared to Obama, the Trump administration has found it harder to accomplish its policy goals through waivers, but if the courts support the Trump administration's work requirement and 1332 waiver initiatives, it would enable the president to use waivers to achieve an ever broader set of goals, including program retrenchment.

The interplay between negative and positive silence has undergone a specific development in Romania. The principle of negative fiction was overturned by law to accommodate the services directive but again reversed by courts. Our research showed that public institutions try to comply with the mandatory deadlines when answering petitions, but in a formal way because some institutions wait until the last day to answer or they provide incomplete answers. Even though the response rate to citizens’ requests is still low in Romania, positive silence as a way to discourage administrative inactivity was limited by courts due to practical implications. Few citizens use legal remedies against administrative silence, which means that citizens often settle with the lack of response or decide not to take upon themselves the task of challenging the lack of response in courts. There are no strategies envisaged to improve the processing time of citizens’ requests.

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.

El presente trabajo académico tien como objetivo realizar un estudio y análisis de la tensión y los conflictos generdos en torno al Procedimiento Administrativo Sancionatorio Contractual, en donde entran en conflico las finalidades del contrato estatao con la satisfacción del debido proceso del contratista. Inicialmente, se tratará sobre un capítulo dedicado a los principios y conceptos que deben aplicarse a la actuación, para luego analizar las tensiones y conlfictos, estableciendo casos en donde se materializa la vulneración de la garantía procesal y el exceso de discrecionalidad de la actuación. Finalmente, se realizan las respectivas recomendaciones necesarias que pueden limitar el exceso de discrecionalidad y de paso, evitar el abuso arbitrario de poder. The objective of this academic work is to carry out a study and analysis of the tension and conflicts generated around the Contractual Sanctioning Administrative Procedure, where the purposes of the state contract come into conflict with the satisfaction of the due process of the contractor. Initially, it will deal with a chapter dedicated to the principles and concepts that must be applied to the action, to later analyze the tensions and conflicts, establishing cases where the violation of the procedural guarantee and the excess of discretion of the action materialize. Finally, the respective necessary recommendations are made that can limit excess discretion and, incidentally, prevent arbitrary abuse of power.

Discretion is a decision to explain policies that explicitly do not regulate certain activities. To interpret it is necessary for government administrators for protected by the formal legal administration so that they are not in the case of abuse of authority. This article was the view from the other side about the control discretion from logic formal. The formal logic we select for to clarify the general principles of reasoning about knowledge attribution for a claim and explain the implications and consequences of inferential control discretion and the role of law. The results of this research revealed that formal rules should control discretion so that the administrative irregularities in the government activity can avoid. This article also confirms the government administrators that discretion is not an activity that violates the law, but has controlled from the interpretation that is biased caused by lack of knowledge, relations of power, and the interests of a particular group.

DISCRICIONARIEDADE NAS CONTRATACOES PUBLICAS: UMA ANALISE DAS ALTERACOES DA LEI GERAL DE LICITACOES E CONTRATOS Resumo: A Lei 8.666/93, que trata do regime geral de contratacoes publicas, ja sofreu diversas alteracoes desde a sua promulgacao, sendo que diversas dessas alteracoes impactaram a discricionariedade administrativa no campo das contratacoes publicas. O presente trabalho identifica as principais alteracoes realizadas na Lei 8.666/93 que tenham impactado a discricionariedade da Administracao no procedimento de contratacao e descreve em que medida tais alteracoes ampliaram ou reduziram a discricionariedade administrativa nas contratacoes publicas. Alem disso, o trabalho tambem classifica as alteracoes conforme tenham sido orientadas pelo eixo da eficiencia ou pelo eixo do interesse social. Ao final, demonstra-se que nos ultimos anos prevaleceram alteracoes que ampliaram a discricionariedade administrativa nas contratacoes publicas e que tais alteracoes foram orientadas principalmente pelo eixo do interesse social. Palavras-chaves: Contratacoes publicas. Licitacoes publicas. Discricionariedade. Lei 8.666/93. Lei Geral de Licitacoes e Contratos. DISCRETION IN PUBLIC CONTRACTING: AN ANALYSIS OF THE AMENDMENTS TO THE GENERAL LAW ON PROCUREMENT AND CONTRACTS Abstract: The Law 8.666/93, which deals with the general system of public contracting, has already undergone several changes since its enactment, and several of these changes have impacted administrative discretion in the field of public contracting. This paper identifies the main changes made to Law 8.666/93 that have impacted the Administration's discretion in the hiring process and describes the extent to which such changes have broadened or reduced administrative discretion in public contracting. In addition, the work also classifies the changes as they have been driven by the efficiency axis or by the social interest axis. In the end, it is shown that in recent year, changes that have increased administrative discretion in public contracting have prevailed, and that these changes have been driven mainly by the social interest axis. Keywords: Public Contracting. Public procurement. Discretion. Law 8.666/93. General Law on Procurement and Contracts. Data da submissao: 21/10/2019 Data da aprovacao: 12/01/2020

The U.S. Housing and Urban Development (HUD) Agency provides Community Development Block Grant (CDBG) funding to state and local governments, giving them broad flexibility to design and implement community projects. The CDBG program emphasizes that public hearings are a requirement to obtain federal funding at the state and local levels. Also, HUD lists several other public participation methods that can be used in addition to public hearings. Further, the extant literature on public participation emphasizes the prevalent use of one method, public hearings, compared to the use of other more engaging techniques. Despite the availability of different methods that may be more engaging, administrators continue to engage the public through the use of public hearings. This study explores the motivation and identity of public administrators in local government, implementing public participation programs. Using a multi-site case study based on fifteen interviews with officials from various localities across the Commonwealth of Virginia, I found that administrators held onto their identity as public servants but might have had difficulty staying motivated to do public engagement work when they perceived that there were impediments in the work environment. Another interesting finding is that these obstacles created tensions between the public servants and their respective organization, leading to fewer performance outcomes among the administrators. Further, the administrators' characteristics (identity) such as job tenure, rank, education, age, and gender, along with their public service motivation, might have impacted their actions and behavior in the public sector environment. I also found that administrators who wanted to do more, commonly reported they were situated in a work environment that limited their ability to do more. I found that the work environment and the identity (personal characteristics and public service motivation) could influence the public service behavioral outcomes of administrators. The interview data pointed out a complex picture of the tensions existing between the institution and the individual. The research revealed that public administrators often adhered to their role as public servants but were faced with dynamics that interacted with their performances. From these findings, administrators must look pass those informal and formal influences that prevent them from staying engaged with their roles as public servants and find ways to give citizens meaningful opportunities to have input into the government decision-making process. Doctor of Philosophy This research sought to discover the public administrators' identities and their motivation for engaging in public participation, along with understanding their roles as public servants. To examine this further, the researcher captured how administrators have engaged the public and how they have documented this engagement in their citizen participation plans. The findings showed that public administrators were committed to their identities as public servants and continued to perform in this capacity despite some of the barriers that may have prevented them from having meaningful engagement opportunities with the public.

The mounting backlash against intra-EU migration in various EU countries has triggered national policies seeking to restrict EU citizens’ social rights and freedom of movement. Building on and expanding Noora Lori’s work around this concept, the article examines intra-EU migrants’ increasingly unsettled legal statuses as potentially precarious citizenship. Focusing on the experiences of young university-educated intra-EU migrants in Brussels, the article claims that, in the absence of straightforward EU legislation and explicit government policies, administrative actors use their discretion to draw indeterminate boundaries enforcing conditionality and temporariness of status for EU citizens in precarious work arrangements, therefore often increasing the pressure on them to take further precarious jobs. The article argues that, under the conditions of precarious employment, not even migrants with privileged access to citizenship rights are protected from processes of boundary enforcement that institutionalise the ambiguity of statuses and produce precarious citizenship.

Government sponsored pay-for-performance systems (P4P) have emerged in many contexts, including those featuring third-party federalism such as Medicaid. In this vein, voluntary networks called Medicaid accountable care organizations (ACOs) seek to achieve health care savings while boosting the quality of care. Drawing on evidence from four states, this study probes how collaborative governance strategies that downplay formal democratic controls and enhance administrative flexibility shaped the response to two implementation problems. We find that administrative flexibility, combined with signals of support from political principals, helped galvanize ACO formation but undermined efforts to tailor performance metrics to the needs of Medicaid enrollees.

The article systematically explores the essence of administrative discretion in the activities of public administration. The key doctrinal approaches regarding the nature of the discretionary powers of public administration are outlined. The author’s approach to understanding the notion of administrative discretion in the activity of public administration is proposed, as well as the key features of it are given. The study attempts to specify the nature of administrative discretion and outline approaches for improving legal regulation of it. The need for further researches in this area in the field of public administration has been substantiated. It is proved that big number of decisions of administrative agencies emerges through the exercise of discretion. The article focuses on the importance of not only reducing the size of administrative discretion, but also ensuring the proper monitoring of the exercise of such powers on the basis of law, justice, and expediency.The discretion of the subject of public administration has the character of a legal fiction, since it is in fact the discretion of the persons who make decisions on behalf and in the exercise of the powers of this authority. In view of this, administrative discretion, as a legal phenomenon, should be regulated at the legislative level. The quality of its regulation depends on the submissiveness of the will of private actors, which is one of the safeguards of law and order.We propose to determine administrative discretion as an objective possibility, supported by actual conditions, and authorized by law, of the authorized person of a public administration body to choose its own reaction from legitimate “alternative” variants of its possible conduct to fulfil the powers granted by law in order to resolve a particular case and to achieve the purpose of providing such a right.The administrative discretion is analytical, intellectually volitional and manifested in the assessment of the actual circumstances of the case, in the definition of the level of own competence, in the interpretation of the rules of law that are applicable in these circumstances, when there is no authentic or other equivalent to it, and in the choice of the most expedient, fair, reasonable, optimal solution - an option of law enforcement (the adoption of an administrative act, the commission of an administrative action or inaction).

RESUMEN El empleo público, como recurso social escaso, ha sido convertido en fortín político o en la posibilidad de materializar el interés individual y caprichoso del servidor que representa al Estado empleador, a través de efigies como la discrecionalidad administrativa. La denominación y el significado ambiguo de esta potestad viabiliza, por efectos de conveniencia, desconocer las implicaciones del Estado Social de Derecho, los principios mínimos fundamentales de la relación laboral y los derechos fundamentales del trabajador. La connivencia resistente a las transformaciones que refleja el legislador y las posturas altamente distanciadas entre las instancias de cierre del poder judicial alimentan, por una parte, el gobierno de la ley por encima de los contenidos normativos supra. Por la otra, tornan selectiva la posibilidad de las personas de encontrar una protección efectiva de sus derechos. Ambas posturas son altamente deletéreas para el modelo neoconstitucional. ABSTRACT Public employment, as a scarce social resource, has been turned into a political fort or the possibility of materializing the whimsical individual interest of the servant representing the employer state through effigies such as administrative discretion. The name and ambiguous meaning of this power make it viable, for convenience purposes, to ignore the implications of the rule of law, the essential minimum principles of the employment relationship and the fundamental labor rights. The resistant connivance to the transformations reflected by the legislator and the very distant stances among judicial authorities, on the one hand, feed the rule of law above higher regulatory contents and, on the other, make the people's possibility of finding effective right protection selective. Both positions are highly deleterious to the neo-constitutional model. RESUMO O emprego público, como um recurso social escasso, converteu-se em um fortim político ou na possibilidade de materializar o interesse individual e caprichoso do servidor que representa o Estado empregador, através de efígies como a discricionariedade administrativa. O nome e o significado ambíguo desse poder possibilitam, por conveniência, ignorar as implicações do Estado Social de Direito, os princípios mínimos fundamentais da relação de emprego e os direitos fundamentais do trabalhador. A conivência resistente às transformações que o legislador reflete e as posições altamente distanciadas entre as instâncias de fechamento do poder judicial alimentam, por um lado, o governo da lei sobre os conteúdos normativos supra. Por outro lado, eles tornam seletiva a possibilidade de que as pessoas encontrem uma proteção efetiva de seus direitos. Ambas as posições são altamente prejudiciais ao modelo neoconstitucional.

The article is of a scientific-research nature. The author discusses the problem of limits of judicial review of discretionary decisions made by taxation authorities, which aim at applying relief in payments of tax liabilities under Polish regulations and case-law of administrative courts. It may be noted that despite the issue of administrative discretion being discussed in the academic literature, the question of limits of judicial review in the practice of administrative courts still raises doubts. It is therefore reasonable to undertake the analysis of the main views formulated in the literature and the case-law of administrative courts addressing this problem, from the point of view of the limits of judicial review of discretionary decisions. The thesis of the article is that the nature of discretionary decisions on relief in payment of tax liabilities, determined by the function of administrative discretion, and, at the same time, the criteria set out in the law for judicial review of public administration, limit the role of the administrative court in examining the compliance with procedural law of the tax proceedings preceding the issuance of such a decision and the respecting by tax authorities of the fundamental values of the system of law expressed in the Polish Constitution. This is because they define the limits of administrative discretion, within which the choice of one of the possible solutions remains beyond the judicial review of the public administration. For the law, as it stands (de lege lata) there are no grounds for administrative courts, provided that the tax authorities respect the basic values of the legal system expressed in the Polish Constitution, to formulate assessments as to the circumstances and reasons justifying the granting or refusal to grant a tax relief, or its scope. The concept of internal and external limits of administrative discretion may therefore be useful for administrative court rulings.