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LAWS 2502 (7)
Chapter 6

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Carleton University
LAWS 2502
Nikola Milanovic

Law State and Citizen Chapter 6Theory Problems and Reform A Reform ChallengesState Goals and Reform Prioritiesy Different views of state goals may have a big influence on administrative law policymakers and commentators y Those who see collective action as a paramount state goal will support measures to enhance administrative law efficiencyy Those whose priorities are control and accountability will seek restraints y Citizen participation and accountability may be sought through direct participation and the electoral process while private interests are typically enforced through the courts y Similar valuebased differences are likely between those who take positivist realist or functionalist approaches to the role of lawJudicial Features and Reform y Another important requirement of administrative law reform is some consensus on the role courts should play in ity The courts have been important historically as vehicles for controlling the administrative process and they have been traditionally associated with private interests that conflict with it y The courts have a number of distinctive institutional strengths and weaknesses to attract both supporters and opponents y They can provide an authoritative resolution of disputes y They are required to decide cases with reference to rules and to aim for consistency in similar situations The Traditional Approachy The traditional approach to control of the administrative process is based on the interlocking principles of parliamentary power parliamentary accountability and judicial interpretation y A requirement of statutory authorization is only effective if there is a mechanism available to enforce it on individual occasions y Courts enforce the requirement of statutory authorization and can provide relief to victims of unauthorized or illegal administrative action y Judicial reviewa major means of controlis simply an aspect of the normal judicial function of interpreting statutes y The traditional approach is grounded on the assumption that the government is essentially a chain of mandates y The electorate start the process by giving a mandate to the government of the day y The government then acts through Parliament to give more precise mandates in the form of statutes to administrators
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