Administrative Law Review 

About: Administrative Law Review is an academic journal. The journal publishes majorly in the area(s): Administrative law & Agency (sociology). It has an ISSN identifier of 0001-8368. Over the lifetime, 220 publications have been published receiving 1283 citations.

The global explosion of freedom of information laws

Abstract: * John M. Ackerman is Professor and Coordinator of the Research Program on Accountability, Legality, and the Rule of Law at the Latin American Faculty of Social Sciences in Mexico City (FLACSO-Mexico). Irma E. Sandoval-Ballesteros is Professor and Director of the Laboratory for the Documentation and Analysis of Corruption & Transparency at the Institute for Social Research of the National Autonomous University of Mexico (IIS-UNAM). The authors would like to thank Bruce Ackerman, Susan RoseAckerman, David Banisar, Pedro Salazar, Mauricio Merino, Ricardo Becerra, and Netzai Sandoval for their helpful comments on previous versions of this Article as well as Mexico's Federal Institute for Access to Public Information for funding support.

Freedom of information and openness: fundamental human rights?

Abstract: * Professor of Public Law and Director of the Institute of European Public Law, University of Hull, United Kingdom (UK), HU16 4AS: P.J.Birkinshaw^ull.ac.uk. Professor Birkinshaw is editor of the journal European Public Law and served as special adviser (1997-1999) to the House of Commons Select Committee on Public Administration, which spent two years examining the UK government's proposals for freedom of information legislation. He is currently working for the same Committee as a special adviser in its investigation into Political Memoirs. I am grateful to Professor Gary Edles for his comments and assistance. I am answerable alone for any faults.

Performance-based regulation: prospects and limitations in health, safety, and environmental protection

Abstract: Regulation is designed to improve the performance of individual andorganizational behavior in ways that reduce social harms, whether by improving industry’s environmental performance, increasing the safety of transportation systems, or reducing workplace risk. Regulators can direct those they govern to improve their performance in at least two basic ways. They can prescribe exactly what actions regulated entities must take to improve their performance. Or they can incorporate the regulation’s goal into the language of the rule, specifying the desired level of performance and allowing the targets of regulation to decide how to achieve that level. This second approach is the subject of this article, which summarizes the discussion at a workshop organized last year by the Regulatory Policy Program at Harvard University. The workshop brought together decisionmakers from a dozen different government agencies as well as leading researchers from the fields of economics, engineering, law, and political science. The dialogue at the workshop, as summarized in this article, builds on the experiences of different regulatory agencies that have used performance-based regulation and clarifies its advantages and disadvantages in addressing health, safety, and environmental problems.

Rethinking regulatory democracy

Abstract: This Article presents a critique of democratic participation in the modern administrative state, and provides an affirmative proposal for reforming public participation in shaping regulatory policy. According to several different strands of thinking about law and democracy, the legitimacy of the administrative state depends on the claim that it provides opportunities for public engagement as well as a mechanism for expert decisionmaking. A typical rulemaking proceeding lets experts make technical judgments about terrorism, transportation, or telecommunications subject to court review guarding against arbitrariness. The whole process is then enmeshed in a system that is supposed to provide engagement – and therefore democratic accountability -- through presidential appointments and control, congressional oversight, and the public notice-and-comment process. This existing approach is legitimated by “administrative pluralism,” a way of thinking that emphasizes the value of interest-group competition in shaping regulatory policy. While administrative pluralism helps legitimate regulatory policy in the eyes of jurists, scholars, and the public, it also suppresses implicit questions about how much expert judgment is required in regulatory decisions, and whether the extent of participatory democracy and responsiveness is sufficient. The problems are not abstract. They are easily demonstrated in the course of a specific regulatory rulemaking proceeding, involving Section 314 of the USA Patriot Act (governing law enforcement’s access to financial information). The task of balancing privacy concerns and law enforcement objectives hardly seems like the exclusive province of experts. Individuals and interest groups did have a chance to submit comments in the rulemaking proceeding, but virtually all the comments taken seriously by the regulatory agency were sophisticated statements made by financial institutions and their lawyers. While over 70% of comments came from individuals concerned about privacy, the agency did not even address these in its final rule, nor does it appear to have deployed any alternative mechanism to assess public reactions to its regulation. Despite the administrative pluralism model’s tenacious hold, at least two alternatives exist to involve the public in rulemaking proceedings such as those governing Section 314. Both involve constituting a small group of people whose discussions can inform the regulatory process. Participants can be either selected by lot from the entire population (a “majoritarian deliberation” approach), or chosen from among constituencies (such as outside experts) who may be especially impacted by the regulation but are essentially unrepresented (a “corrective” approach). Given that neither the public’s sophistication nor its interest in an issue are fixed, the new approaches can generate valuable information about what informed citizens think of regulatory proposals. Many of the technical challenges could be solved by creating a separate agency to implement the alternatives, though questions arise about selecting deliberation groups, framing the issue, and providing representation to the views of the group. Instead, two larger challenges remain. First is the challenge of choosing among different concepts of “administrative democracy” to combine expertise and participation. Second is the challenge of overcoming a political economy that strongly favors the status quo.

Rulemaking in the Shade: An Empirical Study of EPA's Air Toxic Emission Standards

Abstract: In troduction ............................................................................................... 100 I. Interest Groups and Administrative Law: Background and Problem A reas ................................................................................. 104 A. Interest Group Representation and Administrative A ccountability .......................................................................... 104 B. Rulem aking in the Shade ........................................................ 109 1. Rule Development (the Pre-Notice of Proposed Rulem aking (NPRM ) Period) ............................................ 110 2. After the Rule Is Final (the Post-Final Period) ................... 113 3. The Notice-and-Comment Process in Complex R ulem akings ...................................................................... 116 4. Sum m ary ........................................................................... 118 II. Study D esign ................................................................................... 119 A . Coding the D ocket Index ........................................................ 121 B. Coding the Significant Changes in the Proposed Rule ........... 122