For many years there has been the debate on what constitutes informality and formality in administrative law. Administrative law is the body of law that governs the activities of administrative agencies of government, which include rulemaking, adjudication, or the enforcement of a specific regulatory agenda (Harrington, 2009). Rulemaking and adjudication apply for both formal and informal hearings. Whenever the authorizing statute calls for a hearing on the record this would be a formal hearing, and informal hearings are completed with no record and no adherence to evidentiary rules, and final decisions are made by the agency (Harrington, 2009). This paper will briefly discuss the continuum of legal formality’s advantages and disadvantages through administrative law.
Administrative law is designed to control and correct administrative government and focuses on the procedural problems of fairness and accuracy in governmental decision making (Harrington, 2009). To ensure fairness in administrative proceedings within Federal Government agencies the 1946 Administrative Procedure Act (APA) was created (Harrington, 2009). The APA also sets up a process for the United States federal courts to directly review agency decisions. The APA has four distinct areas of administration it governs: (1) adjudication, the process for hearing and deciding controversies; (2) rulemaking, the procedures for developing and amending regulatory rules; (3) discretion of administrative agencies, defined in the statute that creates an agency and reviewing courts must defer to the statute; and (4) judicial review, establishes the standards that courts must apply when reviewing agency actions (Harrington, 2009).
Administrative law governs the government...
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...ed the formal adjudicatory process takes place and if there is still no settlement the case will be presented to an administrative law judge in a hearing (Harrington, 2009).
The core challenges of formal and informal law are how to maintain law’s neutrality. Designing a system of checks and balances that will minimize the risks of bureaucratic arbitrariness, while allowing the agencies the flexibility they need in order to act effectively can fall anywhere on the informality-formality continuum, and when courts continually affirm the authority of agencies to make informal decisions or use informal procedures, such as mediation, they are putting a stamp of approval on the informal dimensions of administration (Harrington, 2009).
Works Cited
Harrington, C. B., & Carter, L. H. (2009). Administrative Law and Politics: Cases and Comments (4th ed.). Washington, DC
The conceptual foundation of the U.S. Constitution is that there is a checks and balance system within the government that was developed to ultimately protect the rights of the people. In Pembaur v. City of Cincinnati (1986), there is an ongoing string of rulings from multiple appeals, for multiple rulings, that derived from a single case. What is interesting to note is that the original charge in the case is not the same charge for the most recent ruling. The actual case that is being heard in the Supreme Court is for civil damages. Although the law is being followed in allowing for the checks and balances to take place, the history of this case took place over a period of nine years from 1977-1986. One could question the efficiency of public administration in delivering a timely decision. As each case reached a ruling, another appeal needed to be submitted for the new justification of the ruling. Many different actions were submitted for review based on the different findings for each new ruling. A mentioned previously, this process was completed over a nine year period, and in accordance
An effective way to mitigate the risk to in-house counsel is to retain outside counsel to deal with subpoenas and investigations, and work with in-house counsel on responses to formal and even some informal governme...
as to whether or not a case is taken up. This is what decides the
Modern Bureaucracy in the United States serves to administer, gather information, conduct investigations, regulate, and license. Once set up, a bureaucracy is inherently conservative. The reason the bureaucracy was initiated may not continue to exist as a need in the future. The need or reason may change with a change in the times and the culture needs. A bureaucracy tends to make decisions that protect it and further it’s own existence, possibly apart from the wishes of the populace. It may not consistently reflect what might be optimal in terms of the needs and wants of the people. Local governments employ most of the United States civil servants. The 14 cabinet departments in the U.S. are run day-to-day by career civil servants, which have a great deal of discretionary authority.
In comparison to parallel economically advanced democracies, the United States in particular is prone to uniquely adversarial and legalistic means of policy formulation and implementation, constructed by the process of judicial review. With the ratification of the U.S. Constitution in 1787, common law, or using precedent as the basis of judicial policy making, has been a staple for American society. This British adaptation to U.S. lawmaking has evolved into an interest-driven persuasion tactic as opposed to statutory interpretation and democratic mechanisms. Americans frequently rely on legal threats and lawsuits, in which the laws that pertain, generally, are more complicated and prescriptive. In idealistic democratic models, the relative institutional relationships among the legislature, the executive state, and the courts. Yet, it is a false truth of the current U.S. governing system, in which author Robert Kagan theorizes is due to the American way of law known as adversarial legalism. Although a thesis in this form is hardly a new discussion, Kagan’s treatment of it ranges throughout the political spectrum, targeting both the atmosphere surrounding policy making as well as its political actors within. Kagan provides a chief explanation for adversarial legalism as a mode of policy making, implementation, and dispute resolution characterized by frequent resort to highly adversarial legal interests, that conclusively infiltrate American democracy and ironically isolate branches of government, discrediting its merit of freedom and equality. Through this examination of politics, it is apparent that the system is at fault, perhaps inevitably, to the continuously growing problem of fragmented government that align with various other...
The Avalon Project at the Yale Law School. Ed. Fray, William C. April 2000. Yale University. 1 May 2000. (http://www.yale.edu/lawweb/avalon/wilson14.html)
Oct 1993. Retrieved November 18, 2010. Vol. 79. 134 pages (Document ID: 0747-0088) Published by American Bar Association
Legal codes in the judicial system is the key distinction between the civil law and common law tradition. It is the supreme source of justice in a society and is meant to provide the common good for a society. Whether or not a country is governed by a civil or common law code greatly influences the role of the judiciary system. Including the presence and role of judicial review. Given these points, civil law clashes with the theory of individualism, therefore this tradition could not work in the American system. Civil law is markedly inflexible because it is difficult to update common law to change with the times. Until relevant criminal charges are laid out or relevant civil action is initiated, there is not an opportunity for these laws and precedents to be changed.
Kevin B. Smith, Alan Greenblatt, and John Buntin, Governing states and localities: First Edition (Washington, D.C.: CQ Press), 2005, 95.
Hall, Kermit L, eds. The Oxford guide to United States Supreme Court decisions New York: Oxford University Press, 1999.
Van Dervort, T. (2000). American Law and the Legal System: Equal Justice under the Law. (2nd
It is no secret that the American legal system is distinct from other developed Western nations in its practices and laws. This variation, termed “adversarial legalism” by Professor Robert Kagan in his book, Adversarial Legalism, has two salient features: formal legal contestation and litigant activism. In civil and criminal law, jury trials and a specific lawyering culture exemplify these traits. Though adversarial legalism responds well to the American desires of justice and protection from harm while simultaneously respecting the societal fear of a government with too much power, it leads to extremely costly litigation and immense legal uncertainty. To reconcile the American view of justice and the undesirable outcomes of formal contestation and litigant activism, the legal system has gone so far as to reform large parts of the system, including bureaucratic regulations and the plea bargaining process. However, as Kagan states, rather than reduce the costliness or uncertainty of the legal process, these procedural changes have merely lead to an increase in litigation and, therefore, an increase of adversarial legalism in criminal and civil law.
Alternative Dispute Resolution (ADR) involves dispute resolution processes and techniques that fall outside of the government judicial process. There has been moves against ADR in the past by entities of many political parties and their associates, despite this, ADR has gained inclusive acceptance among both the broad community and the legal profession in past years. In fact, many courts now entail some parties to remedy to ADR of some type, usually mediation, before allowing the parties' cases to be tried. The increasing attractiveness of ADR can be clarified by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to obtain larger control over the selection of the individual or individuals who will decide their dispute.