Shrey Shrestha 2021/2022
Administrative Law and Market Regulation: Outline
Lecture 1: Introduction to Administrative Law and the World’s Most Influential Systems of
Administrative Law
Focus on regulation due to its economic relevance, multi-level governance, and dynamic character.
Content:
What is administrative law?
What is the relationship between constitutional law and administrative law?
General overview of the most influential systems of administrative law around the world: French, German, and Anglo-
Saxonic systems
Introduction to the relationship between administrative law and regulation -What is Regulation? Why Regulate?
(new)
Readings:
S. Cassesse (2012). ‘New Paths for Administrative Law: A Manifesto’, International Journal of Constitutional Law, 10
(3), pp. 603-613.
B. Morgan and K. Yeung (2007). An Introduction to Law and Regulation, (Cambridge: Cambridge University Press),
chapter 1.
Cassese article
Administrative law- conceived as the domain of stability and continuity - ‘constitutional law passes,
administrative law remains.
Dogmatic and systematic approach towards Admin law in Europe- Savigny, Orlando - derived from
tenets of private law.
Administrative institutions have undergone changes and idea that admin law concepts as stable has
been abandoned due to globalization, privatization, citizens’ participation, global fiscal
responsibilities.
New concepts and ideas: new public management, governance, accountability, expert bodies
TL: DR Need for a new approach/framework to explain the changes that have taken place (caused
by modernization and globalization inter alia- everything is getting more entangled)
Need for methodological pluralism- legal, economic, political analyses of law while holding on
to the core legal principles of admin law and its basic categories.
As well as study links to social sciences- economics, politics, history and political sciences
Otto Mayer, “[t]he administration is the activity of the State for the accomplishment of its ends.
Administrative law- product of the state but has now become dependent on other
powers of transnational, global, and local dimensions - national legal orders no longer self-
contained
Administrative law in transition:
,Shrey Shrestha 2021/2022
Tw0 trends in the last decade.
i) End of admin. law - French and Belgian claims: admin law has lost its
peculiarities- making it difficult to define its status and scope - hybridization -
destabilized and destructured.
- Due to diverse trends like globalization, constitutionalization,
decentralization, destatization, administrative law is slowly losing its raison
d’être—its center: the state
Constantly become fragmented and multi-polar (from bipolar-
administrative authorities and its subjects to multi-polar- state
agencies, empowered citizens, private legal actors, and conflicting
private interests).
Rule of law and judicial review v. executive prerogatives and privileges
ii) New admin. law - German claims of a new/postmodern admin law
emerging
- more open and a product of the new role of the state as a promoter, as a
facilitator, as a risk regulator, and as the helmsman of economy and society
i.e., focused on “steering” rather than on ordering.
-Claims a new interdisciplinary approach.
New changes in admin law- Globalization, privatization, citizens’
participating, new global fiscal responsibilities - continuity and change
New concepts - new public management, governance, accountability, expert
bodies, steering.
Govt. expected to address complex and technological problems in a flexible
fashion - can’t be constrained by strict legality requirements
Growth of ultra-national and intra-national powers, increasing functional splitting (national
govts act both as sovereign and as delegates of ultra-national bodies), development of certain
basic principles of administrative law at global, national, and local levels (e.g., Principle of
good administration in Europe, idea of open statehood and principles of proportionality in
Germany and the EU)
Development of principles shared by several legal orders (global, national, and local
levels) - which therefore become universal (right to hearing, duty to give reason,
judicial review) - common core principles
Increased opportunity for public participation, but also produce increasing conflicts - rights
imposed on national legal orders - national governments subjected to contradictory trends -
declining sovereignty of States whilst being obliged to follow new responsibilities -
such as controlling global terrorism or global warming.
Growth of a global space and global polity- organizations claiming control
over functions
Results in ‘denationalization of admin. law’ - move away from traditional
nation- based approach
- Vertical and horizontal (inter-institutional) accountability: ‘Technocrat-guardians’, shielded from
political influence now hold the power as the source of democratic legitimacy over national
governments and ministerial bodies via independent regulatory agencies and supranational
institutions
,Shrey Shrestha 2021/2022
Constitutional developments- popular participation (in decision-making processes) and
deliberative democracy- affect admin law
Global level- Admin networking and shared admin are necessary by increased political
cooperation in intergovernmental global institutions and in hybrid global regulatory bodies
National level- collaboration and horizontal accountability are products of increased
fragmentation of national executives into many different agencies.
Administrative regulation increasingly consists of regulation of procedures
Administrative law was developed along vertical lines, but new developments have given
renewed attention to cooperation, co-decision, and reciprocal accountability as well as
procedures, disclosure, access to information.
The proceduralization of admin law makes a new approach necessary because
admin decisions no longer take center stage and have been replaced by procedure.
Admin law initially meant to be ‘special law’ separate from private law, but private law
invading space of public law and eroding its specificity.
Globalization, overburdened govts, privatization and new public management techniques have
de-emphasized and blurred public-private divide.
National govts making increasing use of private law - contracts between state and
private persons - state becomes dependent upon collaboration with civil society.
Outsourcing and public-private partnerships- increase efficiency and
sectionalism but contributes to fragmentation of the state.
Private institutions also increasingly apply admin. law rules.
New relevant topics for analysis of admin law: state-owned enterprises,
public-pvt partnerships, public incentives to private companies, and market-
oriented regulation.
Move of admin law from a mechanical structure to a market: Traditional
Weberian-style administration as a ‘machine’ - linear development, linear
decision-making process - mechanical form of regulation - hierarchical public
administration with well-defined policy goals set in legislation
Now- administration, politics and society form a triangle (no clear
dividing line between administration and society - negotiation runs
side by side with command and control - more of a market
Move from rules and judicial-redress mechanism for effective working of
administration to accountability network via which civil servants are kept in
check
State is increasingly part of society due to its economic role.
Administrative law - multi-layered - accumulated over time, juxtaposed - due
to growth and changes brought about over time as a result of societal
developments - older forms continue, but their functions have changed.
Morgan and Yeung
Regulation as a distinct field of academic inquiry
, Shrey Shrestha 2021/2022
Law as an instrument of social control through regulation.
Theories of regulation, techniques and instruments for regulation, compliance with and
enforcement of regulation, issues of accountability and legitimacy
Market competition has placed increasing pressure on social democracy and idea of a welfare state.
State intervention into economy- bolsters markets or tempers their effects by adding a social
inclusion dimension
Increasing scope of regulatory politics- environment, financial services, health and safety etc. due
to the dynamic socio-political context.
Lecture
What is administrative law?
Theranos (and regulation)
Elizabeth Holmes - developed medical diagnostics device for blood tests without needles
‘one small finger-prick sample’ - sold at locations such as Walgreens
Medical devices regulated by FDA in the US
She defrauded people for billions of dollars with a loophole - the device was marketed
as a Class I medical device, i.e., wasn’t regulated as strictly- without the clearance of
the FDA- potential to be dangerous since tests included everything from HIV testing
to diabetes; unreliable results could have major impact on people’s lives- illustrates
need for good regulation.
Interests involved- Patients interests- Less invasive, more fast-tracked system.
Labs and nurses/pharmaceuticals- would view Theranos’
technology as competition/threat
Insurance companies- don’t have to cover claims for regular lab
testing
Takeaway: Regulation is a mix between public and private interests as well as public
and private regulation
e.g., FDA regulated standards- Public regulation; Size of needle standards set
by an institution - private regulation.
What is administrative law?
Rules for government and ‘against’ government
General administrative law (applicable to every public body except if there are
specific dispositions/fields i.e., if there is not governed under a specific legislation)
Admin law is body of law for the government - body of rules that organizes
government and its public bodies (French approach)
