ADMINISTRATIVE LAW:
BUREAUCRACY IN DEMOCRACY
No legal subject is as timely and important as administrative law. Today, nearly every person will have contact with several government agencies in a year's time while never making contact with an elected representative. Even more, individuals, especially those who own or operate businesses, are more heavily regulated by administrative agencies than they are by their "political" representatives. The Framers of the United States Constitution intended to create a self-governing republic. But the Framers lived in a simpler world, one without international travel, the Internet, and businesses as large and powerful as nations. Governments have turned to large bureaucratic agencies to meet the demands of the increasingly large and complex nation.
The challenge is to remember what the Framers feared and to remain steadfast in preserving what they designed, even in the wake of social and technological change. This text is devoted to the idea that government is to remain accountable, and thereby tyranny can be prevented. The simple division of power into federal and state and into three branches is no longer realistic. But the principle is the right one, and with some molding it can continue to be an effective structural constraint on agency authority. The reader will learn in this text that most constitutional rules and doctrines that apply to administrative law are intended to keep government accountable. Even more, when distilled, many of them are founded upon separations theory.
There are three goals in this text:
- to examine administrative law in the context of accountability and the prevention of abuse;
- to assist students in critical thinking and case analysis by including case excerpts;
- to provide students with some practical knowledge of administrative agencies and the laws that govern their behavior.
TEXT FEATURES
The writing style and language of this book are intended for the undergraduate student in law, justice, or political science or the graduate student in non-law fields. When used, legalese is explained.
As mentioned, I have included case excerpts throughout the text. Cases were selected on the basis of the following criteria: importance and impact, currentness, clarity of writing, and ability to be edited successfully. The book has been written so that the text can stand alone. The cases are used to illustrate or more fully develop ideas that are discussed in the text.
In order to keep the cases an appropriate length, considerable text .has been excised from most of the cases. The guiding principle in the editing process was to reduce the size of each case without jeopardizing its legal and educative integrity. Some internal citations have been retained, others removed. In some instances, especially a long string of cities, the removal of a citation is denoted with an ellipsis. In others, the citation has been removed without notation.
Many illustrations, graphs, and figures are used to assist the students in conceptualizing the subjects discussed. These include conceptual mapping diagrams as well as data charts.
Sidebars on topics related to the discussion in the text have been included to increase student interest in the subject.
Legal terms are in boldface in the text and defined in the margins.
At the close of each chapter, a legal Web site is featured in Lawlinks. In addition, a list of Web sites can be found in Chapter 12.
Review questions and review problems can be found at the close of each chapter. Review questions are designed to test the reader's retention of the content of the chapter. The review problems are designed to test the reader's ability to apply the concepts of the chapter to a set of facts or to engage in critical analysis.
Appendices include excerpts from the federal Constitution, the Administrative Procedure Act, and selected presidential executive orders.
CHAPTER TOPICS
Chapter 1 introduces the student to administrative agencies and administrative law. A discussion of the size of the American bureaucracy and how it impacts the daily lives of those living in the United States is intended to pique the reader's interest.
Chapter 2 sets the tone for the remainder of the book. It discusses the concept of free government, how the Framers of the Constitution intended to protect freedom, and the contemporary challenges administrative law faces today in this regard.
Chapter 3 examines agency discretion and provides many practical examples of discretionary agency authority. The idea of abuse of discretion is a segue to Chapter 4's discussion of due process and fairness.
Chapter 4 explores due process and equal protection in the administrative context. Practical problems are discussed, as is the conceptual aspects of protecting against governmental abuses.
Chapter 5 discusses legislative delegations of authority to agencies and Chapter 6 continues this discussion by examining delegation of rulemaking power. Delegations to private parties are included, as privatization is becoming increasingly popular. Delegations of criminal law authorities are also discussed because there appears to be an increase in the penal authority of many agencies.
Chapter 7 is concerned with agency investigations and data collection. Fourth Amendment search and seizure and Fifth Amendment self-incrimination issues are discussed in detail. Drug and AIDS testing are given special attention.
Chapter 8 is devoted to agency adjudications. The right to participate, adjudicatory procedures, administrative law judges' selection and bias, and other concepts are covered. This then leads into the discussion of judicial review found in Chapter 9.
Chapter 9 looks at judicial review of agency action. Limiting doctrines, such as exhaustion and primary jurisdiction, are discussed. Standards of review, scope of review, and sources of common law review are also part of this chapter.
Chapter 10 is entitled "Accountability Through Accessibility" and addresses open government. The federal Freedom of Information Act, Privacy Act, Open Meetings Act, Federal Advisory Committee Act, and Trade Secrets Act are detailed.
Chapter 11 looks at a different form of judicial review than that in Chapter 9. This chapter is concerned with the civil liability of governments and government officials in the performance of their duties. This chapter examines both federal and state common law remedies and immunities.
Finally, Chapter 12, written and contributed by Dr. Deborah Howard of the University of Evansville, provides students with the analytical framework and practical knowledge necessary to research administrative law issues. Dr. Howard has included a large list of legal Web sites. Any legal researcher will find this list helpful.
I hope this text assists you in teaching or
