Suchergebnisse

This article's investigation into the "agency for legitimacy" proceeds in five steps: Part I introduces the concept of "administrative constitutionalism," which encompasses the debate over what should be the role and nature of public administration to ensure its legitimacy. It then lays out the elements of the rational-instrumental and deliberative-constitutive paradigms and explains how they contribute to administrative constitutionalism respectively from the outside-in and inside-out. Part II provides a brief history of administrative constitutionalism, which reveals there have been ongoing tensions between two paradigms—and thus between outside in and inside out accountability—since the 1880s. Part III elaborates on the authors' argument that the current emphasis on the rational-instrumental model has been administrative constitutionalism unsustainable. Part IV argues that acknowledging and developing the deliberative-constitutive paradigm will strengthen administrative constitutionalism by admitting the existence of agency discretion and by looking for realistic ways to make it accountable. Finally, Part V offers a case study in how the deliberative-constitutive paradigm can contribute to administrative constitutionalism. ; The Kay Bailey Hutchison Center for Energy, Law, and Business

The political nature of the administrative process -- The legal nautre of the administrative process -- Legislative control of administrative discretion -- Executive control of administrative discretion -- Judicial control of agency discretion threshold issues -- Judicial control of administrative discretion procedural -- Judicial control of administrative discretion substantive issues -- Access to private and public information -- Fairness and political accountability.

As consumers, we assume that the automobiles, pharmaceuticals, medical devices, and other products we purchase are generally safe for their intended uses. We rely on manufacturers to design and produce safe products, and we assume that federal regulators are conscientious watchdogs of the marketplace. In most instances, our assumptions are valid and we safely go about our lives. But the regulatory system is now frayed to the point that dangerous products sometimes slip through the cracks. Vioxx, Firestone/ATX tires, and toxics-laden children's toys have endangered and harmed millions. In these cases, society depends on the state courts as a venue for injured people to seek justice. Over the years, product manufacturers have worked hard to deny injured consumers' access to the courts – and during the Bush Administration, they had powerful allies in the White House and throughout the Executive Branch. Complaining of excessive damage awards and unpredictable legal terrain, manufacturers have adopted the argument that federal regulatory actions preempt injured consumers' lawsuits for things like negligence, defective design, or failure to warn. The preemption argument is based on the Constitution's Supremacy Clause, under which Congress has the power to invalidate, or "preempt," state law through enactment of appropriate legislation. The defense bar has misappropriated that limited legal doctrine. Protective regulatory action should not be used to shield manufacturers from having to prove that their products are safe. But that is precisely what the regulatory preemption doctrine does: it gives judges the ability to throw legitimate victims out of court before they have even had a chance to make their case that their injuries were caused by a dangerous product. Furthermore, the claim asserted by numerous federal agencies late in the Bush Administration that federal actions could and should preempt state common law constituted an unsound and unprecedented policy shift. This white paper lays out a different perspective ...

The structure of the U.S. Constitution reflects a profound respect for the principles of federalism and state sovereignty. These principles require the federal government to recognize and encourage opportunities for state and local governments to exercise their authority, especially in areas of traditional state concern such as the protection of the health, safety, and welfare of their citizens. However, over the last six years there has been a coordinated Executive Branch effortto use the regulatory process to shield certain product manufacturers from state tort liability. The Food and Drug Administration, National Highway Traffic Safety Administration, and Consumer Product Safety Commission, among others, have attempted to use the doctrine of preemption to block consumers' access to state courts. During the Bush Administration, executive agencies have included assertions of preemption in regulatory preambles, filed amicus briefs in litigation in which other litigants have argued that federal statutes preempt state law, and submitted to Congress draft legislation that would preempt state and local authority to protect public health, safety, and the environment. The Obama administration should replace Executive Order 13132, which instructs administrative agencies to consider the federalism implications of their actions, with an Executive Order that is more protective of the legitimate interests of state governments in maintaining their traditional role in protecting the health, safety and welfare of their citizens. While the current order has some desirable features, it is inadequate to prompt the type of deliberations in which agencies should engage when they are considering whether to support the preemption of state law.