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Published online by Cambridge University Press: 28 September 2015
This article analyses, from historical and comparative perspectives, three closely related concepts of administrative law – namely records, reasons and rationality. It finds that the concept of the ‘administrative record’ is far more significant in United States administrative law than in either English or Australian administrative law, and suggests why this might be so. The importance of the record in US law explains why it imposes stronger obligations on administrators to give reasons than does either English or Australian law. It also explains why terms such as ‘rationality’ and ‘reasonableness’ have significantly different meanings in US administrative law on the one hand, and English and Australian law on the other.
1 Peter Cane, Control of Administrative Power: An Historical Comparison (Cambridge University Press 2016, forthcoming).
2 Peter Cane, ‘Review of Executive Action’ in Peter Cane and Mark Tushnet, The Oxford Handbook of Legal Studies (Oxford University Press 2003).
3 I use this term to refer to the English legal system which, for present purposes, incorporates that of Wales but not the systems of other components of the UK: Scotland and Northern Ireland.
4 Here I am heavily indebted to Phillip Murray, ‘Process, Substance and the History of Error of Law Review’, Cambridge Public Law Conference, 2014.
5 ibid.
6 The use of certiorari to quash for non-jurisdictional error was ‘revived’ in R v Northumberland Compensation Appeal Tribunal, ex parte Shaw [1952] 1 KB 338. The scope of the record was expanded in cases such as R v Medical Appeal Tribunal, ex parte Gilmore [1957] 1 QB 574 and R v Chertsey Justices, ex parte Franks [1961] 2 QB 152.
7 David Dyzenhaus and Michael Taggart, ‘Reasoned Decisions and Legal Theory’ in Douglas E Edlin (ed), Common Law Theory (Cambridge University Press 2007) 140.
8 ibid.
9 ibid 143.
10 As in the case of Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147.
11 Michael Fordham, Judicial Review Handbook (5th edn, Hart 2008) 162.
12 R v Secretary of State for the Environment, ex parte Powis [1981] 1 WLR 584.
13 Hollis v Secretary of State for the Environment [1983] 47 P&CR 351.
14 Michael Supperstone, James Goudie and Paul Walker, Judicial Review (4th edn, LexisNexis 2010) 719.
15 Tweed v Parades Commission of Northern Ireland [2007] 1 AC 650 [3].
16 Supperstone, Goudie and Walker (n 14) 721.
17 Concerning off-the-record, ‘ex parte’ contacts in US law see n 35 below and text.
18 Supperstone, Goudie and Walker (n 14) 718.
19 South Bucks District Council v Porter [2004] 1 WLR 1953 [24].
20 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
21 Craig v South Australia [1995] 184 CLR 163, 180–83.
22 Public Service Board (NSW) v Osmond [1986] 159 CLR 656.
23 In the English tradition, by contrast, public law has a quasi-metaphysical status independent of state institutions, of which positive law – whether made by a legislature or a court – is an expression or instantiation. It is in this sense (first formally enunciated in Magna Carta) that the sovereign governmental institution could be subject to ‘law’ even – as AV Dicey was famously to express it at the end of the nineteenth century (in his Introduction to the Study of the Law of the Constitution) – in the absence of any ‘constitutional’ document that embodied ‘the rights of Englishmen’. In this sense, the novelty of the US Constitution was not its recognition of rights but rather the form of that recognition, embodied in a new idea of ‘higher law’ that was qualitatively different from ‘ordinary law’.
24 These distinctions are examined at length in Peter Cane, Administrative Tribunals and Adjudication (Hart 2009).
25 Here I am heavily indebted to Leighton McDonald, ‘Inadequacy of Justification as a Basis for Judicial Review in Australia: Process and Substance?’, Cambridge Public Law Conference, 2014.
26 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, paras 94–100.
27 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
28 McDonald, Leighton, ‘Rethinking Unreasonableness Review’ (2014) 25 Public Law Review 117Google Scholar.
29 Wingfoot Australia Partners Pty Ltd v Kocak and Others [2013] 303 ALR 64, para 57.
30 McDonald (n 28).
31 United States Code, 5 USC § 554(a) (2006) (US).
32 United States Code, 5 USC § 556(d) (2006) (US).
33 United States Code, 5 USC § 556(e) (2006) (US).
34 United States Code, 5 USC § 557(c)(3)(B) (2006) (US).
35 United States Code, 5 USC § 557(d)(1)(A) (2006) (US). Severe sanctions may be imposed on a party for breach of this prohibition: § 557(d)(D). See also § 554(d)(i) with regard to consulting ‘a person or party on a fact in issue’: this need not be done on the record but notice of the consultation and an opportunity to participate must be given to all parties. See also Peter Strauss, Administrative Justice in the United States (2nd edn, Carolina Academic Press 2002) 204–07.
36 United States Code, 5 USC § 706(2) (2006) (US).
37 For present purposes, ‘policy-making’ can be considered a synonym for ‘law-making’.
38 United States Code, 5 USC § 553 (2006) (US).
39 United States Code, 5 USC § 553(c) (2006) (US).
40 Strauss (n 35) 230.
41 ibid 230–32.
42 ibid 233–34.
43 In Australian law, as we have seen, judicial and executive power are sharply distinguished, leading to a narrow understanding of judicial power. In US law, by contrast, the understanding of good administration analogises it with judicial practice, leading to a rather broader understanding of the judicial function. In other words, US law is more tolerant than Australian law of dilution of judicial power by its conferment on non-judicial bodies.
44 eg, McGarity, Thomas O, ‘Some Thoughts on “Deossifying” the Rulemaking Process’ (1992) 41 Duke Law Journal 1385Google Scholar; Pierce, Richard J Jr, ‘Rulemaking and the Administrative Procedure Act’ (1996) 32 Tulsa Law Journal 185Google Scholar; Cross, Frank B, ‘Shattering the Fragile Case for Judicial Review of Rulemaking’ (1999) 85 Virginia Law Review 1243Google Scholar. However, recent empirical research challenges the ossification thesis: Yackee, Jason Webb and Yackee, Susan Webb, ‘Administrative Procedures and Bureaucratic Performance: Is Federal Rule-making “Ossified”?’ (2009) 20 Journal of Public Administration Research and Theory 261Google Scholar; Raso, Connor N, ‘Strategic or Sincere? Analyzing Agency Use of Guidance Documents’ (2010) 119 Yale Law Journal 782Google Scholar; Jason Webb Yackee and Susan Webb Yackee, ‘Testing the Ossification Thesis: An Empirical Investigation of Federal Regulatory Volume and Speed, 1950–1990’ (2012) George Washington Law Review 1414.
45 The development was called for by Pedersen, William F Jr, ‘Formal Records and Informal Rulemaking’ (1975) 85 Yale Law Journal 38Google Scholar. A record, as understood by Pedersen, has a structure that is procedurally driven; it is not merely an after-the-event, ‘historical’ collection of documents. According to Strauss ((n 35) 236), the Supreme Court first made the link between review of non-adjudicatory proceedings and the need for a record in 1971 (well before Pedersen wrote) in Citizens to Preserve Overton Park v Volpe 401 US 402 (1971).
46 As we have seen, in English and Australian law the concept of the record now plays little or no part in the law of judicial review of decisions, and it has never played a part in the law of judicial review of rule-making.
47 Vermont Yankee Nuclear Power Corp v Natural Resources Defense Council 435 US 519 (1978).
48 Strauss (n 35) 243–44.
49 Abbott Laboratories v Gardner 387 US 136 (1967); Jerry L Mashaw, Greed, Chaos, and Governance: Using Public Choice to Improve Public Law (Yale University Press 1997) Ch 7.
50 This parenthetical throw-away opens a large can of worms.
51 ‘[P]re-New Deal administrative law had relatively thin rationality requirements’: Mashaw, Jerry L, ‘Small Things Like Reasons are Put in a Jar: Reason and Legitimacy in the Administrative State’ (2001) 70 Fordham Law Review 17Google Scholar, 24. Since then ‘the path of American administrative law has been the path of progressive submission to the power of reason’: ibid 26.
52 See text at n 8 above.
53 But, unexpectedly, not lower courts.
54 SEC v Chenery Corp (Chenery I) 318 US 80 (1943).
55 Stack, Kevin M, ‘The Constitutional Foundations of Chenery’ (2007) 116 Yale Law Journal 952Google Scholar.
56 For an argument that this might be changing and that rationality might be losing out to politics see Short, Jodi L, ‘The Political Turn in American Administrative Law: Power, Rationality, and Reasons’ (2012) 61 Duke Law Journal 1811Google Scholar.
57 Because of limitations of space, the argument is presented in this article in a compressed and elliptical form. It is elaborated in much greater length and in various contexts in Cane (n 2).
58 Richard E Neustadt, Presidential Power and the Modern Presidents: The Politics of Leadership from Roosevelt to Reagan (Free Press 1990) 29.
59 I am using the term ‘accountability’ in a narrow sense. It is often used in a broader sense that would encompass checks and balances: eg, Richard Mulgan, Holding Power to Account: Accountability in Modern Democracies (Palgrave Macmillan 2003) 30–31, 105–06, 108, 188, 221–22, 223, 227. See also Mark Bovens, Robert E Goodin and Thomas Schillemans, The Oxford Handbook of Public Accountability (Oxford University Press 2014).
60 For a modern restatement and reworking of this point of view see Frank Vibert, The Rise of the Unelected: Democracy and the New Separation of Powers (Cambridge University Press 2007).
61 The most famous statement in a legal context of the interest representation approach is Stewart, Richard B, ‘The Reformation of American Administrative Law’ (1975) 88 Harvard Law Review 1669Google Scholar.
62 Lord Hailsham, ‘Elective Dictatorship’, The Listener, 1976, 496–500.
63 In the quasi-metaphysical sense explained earlier (n 23).
64 In theory, anyway, and typically in practice, Yes Minister notwithstanding.
65 ibid.
66 For a classic discussion see Linde, Hans A, ‘Due Process of Lawmaking’ (1976) 55 Nebraska Law Review 197Google Scholar.
67 Or, at least, only indirectly.
68 In the US context, the statutory imposition of reason-giving obligations can be understood as a device of Congress to control the bureaucracy, which is quasi-independent of all three components of the legislature.