Global and Comparative Administrative Law

Global and Comparative Administrative Law

Susan Rose-Ackerman

Richard Stewart

Yale Law School

Fall 2012

Tuesday 2:10 – 4:00 pm

Global and Comparative Administrative Law

Required Course Book: At the Yale Bookstore:

Susan Rose-Ackerman and Peter Lindseth, eds., Comparative Administrative Law, Edward Elgar, paper, 2010.

Resources for Global Administrative Law:

The NYU Global Administrative law Project ( publications, papers, partnerships and conferences; bibliography; suggestions for research topics.

Sabino Cassese, Bruno Carotti, Lorenzo Casini, Eleonora Cavalieri, and Euan Macdonald, eds. Global Administrative Law: The Casebook. Rome: IRPA (2012), with collection of cases and commentary and bibliography, (links to individual chapters in PDF format)(the entire casebook will be available on Amazon Kindle Sept 15). The readings below include assignments to selected portions of the various chapters.

Optional (at Yale Bookstore) for non-US students who need a review of US administrative law: Peter Strauss, Administrative Justice in the US, 2d edition. Carolina Academic Press (2002) Begin with parts I, II, and V.C.

I. Global and Comparative Administrative Law: Outlining a Field of Study [9/11]

[Administrative law is part of the legal structure of established states. It protects individuals from state overreaching and helps provide democratic legitimacy when the legislature delegates policymaking power to the executive. What do these principles mean when extended to the global area where canonical democratic institutions do not exist and regulatory power is exercised by many fragmented public, private and hybrid administrative bodies?]

  1. Daniel B. Rodriquez, “Administrative Law,” in Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira, eds. Oxford Handbook of Law and Politics, Oxford UK: Oxford University Press, 2008, pp. 340-359.
  2. Giandominico Majone, “From the Positive to the Regulatory State,” Journal of Public Policy 17(2): 139-167 (1997).
  3. Susan Rose-Ackerman and Peter Lindseth, “Comparative Administrative Law: An Introduction,” in Susan Rose-Ackerman and Peter Lindseth, eds., Comparative Administrative Law (Edward Elgar, 2010), pp. 1-20.
  4. Benedict Kingsbury, Nico Krisch, and Richard B. Stewart, “The Emergence of Global Administrative Law,” Law and Contemporary Problems 68: 15-61 (2005).
  1. Sabino Cassese, Globalization of Law (Mss. 2011) [Good accessible overview, from a “continental” perspective, of the rise of global governance and law.]

Case Study:

Richard Stewart and Michelle Ratton Sanchez Badin, The World Trade Organization and Global Administrative Law, 9 I*CON 556 (2011).

Additional optional reading

Benedict Kingsbury, The Concept of “Law” in Global Administrative Law, 20 European Jl Intl Law 23 (2009) [explores to what extent GAL principles and practices can be regarded as a more or less unified body of “law” as opposed to good or prudent administrative practice, notwithstanding general absence of legally authoritative sources for GAL]

  1. Accountability and Delegation [9/18 & 9/25]
  1. Delegation: [9/18] [Delegation of policymaking to the executive is the inevitable result of the nature of modern policy problems and the inadequacy of legislatures as policymaking institutions. This issue is central of the study of comparative administrative law, but what are the global analogies? At the international level there is no democratically elected legislature to set the policy framework. Thus, many international bodies do not operate under clear delegated authority. Also, private and hybrid regulatory bodies play a much larger role than in the domestic context. Exceptions are treaty-based organizations but with the units representing states, not citizens, and their accountability often runs to the most powerful members
  1. Giandominico Majone, “Two Logics of Delegation: Agency and Fiduciary Relations in EU Governance,” European Union Politics 2/1: 103-122 (2001).
  1. Susan Rose-Ackerman, “Contents and Introduction,” S. Rose-Ackerman, ed., The Economics of Administrative Law, Edward Elgar Publishing, 2007, pp. v-vii, xiii-xxviii (concentrate on pp. xiii-xvii, xxiii-xxiv).
  2. M. A. Pollack, “Learning from the Americanists (Again): Theory and Method in the Study of Delegation.” The Politics of Delegation. M. Thatcher and A. Stone Sweet. Oxford: Frank Cass (2003) pp. 200-220.
  1. David Lake and Mathew McCubbins, “Delegation to International Agencies,” Draft 2.1: Sep. 13, 2004.
  1. Eyal Benvenisti and George Downs, “The Emperor’s New Clothes: Political Economy and the Fragmentation of International Law,” 60 Stan. L. Rev. 595 (2007-2008).
  1. Walter Mattli and Ngaire Woods, “In Whose Benefit? Explaining Regulatory Change in Global Politics,” The Politics of Global Regulation. Princeton: Princeton University Press (2009) pp. 1-43
  1. Accountability and Power [9/25] [Read items i to iv: Grant & Keohane, Stewart, Ferejohn, B. Ackerman, plus two of the country reports or one country report and GAL case study]

[Given delegation from the legislature or global actors that assert the power to act even without clear delegation, how are such bodies held to account? What options are available and how do they link to constitutional or global structures of authority?]

  1. Ruth Grant and Robert Keohane, “Accountability and Abuses of Power in World Politics,” 99 American Political Science Review 29. [get published version in American Pol Science Review] (good I/R political scientist overview)
  1. Richard B. Stewart, Accountability, Participation and the Problem of Disregard (draft 2012)[more focused on legal and institutional issues]
  1. John Ferejohn, Accountability in a Global Context, IILJ Working Paper 2007/5, Global Administrative Law Series. [political and legal accountability in domestic and global contexts]
  2. Bruce Ackerman, “Good-bye, Montesquieu,” in Susan Rose-Ackerman and Peter Lindseth, eds., Comparative Administrative Law (Edward Elgar, 2010), pp. 128-133.

Country Reports:

France: J. Ziller, “Political Accountability in France” in Luc Verhey, H. Broeksteeg, and Ilse Van den Driessche, eds. Political Accountability in Europe: Which Way Forward? Groningen, Europa Law Pub., 2008, pp. 81-98.

Germany: Veith Mehde, “Political Accountability in Germany” in Luc Verhey, Hansko Broeksteeg, and Ilse Van den Driessche, eds. Political Accountability in Europe: Which Way Forward? Groningen, Europa Law Publishing, 2008, pp. 101-119.

Britain: Adam Tomkins, “Political Accountability in the United Kingdom” in L. Verhey, H. Broeksteeg, and I. Van den Driessche, eds. Political Accountability in Europe: Which Way Forward? Groningen, Europa Law Publishing, 2008, pp. 245-269.

United States: Peter Strauss "Overseer or "The Decider"? The President in Administrative Law." George Washington Law Review 75(4): 696-760 (2007).

Brazil: Mariana Mota Prado, “Presidential Dominance from a Comparative Perspective: The Relationship between the Executive Branch and Regulatory Agencies in Brazil,” in Susan Rose-Ackerman and Peter Lindseth, eds., Comparative Administrative Law (Edward Elgar, 2010), pp. 225-245.

US Regulation and Global Regulatory Norms:

  1. Richard Stewart, The Global Regulatory Challenge to US Administrative Law, 37 NYU J. Int’l L. & Pol. 695 (2004-2005)
  2. NRDC v. EPA, 373 U.S. App. D.C. 223; 464 F.3d 1 (D.C. Cir 2005)
  1. Policymaking Processes: Participation, Transparency and Rights to Information [10/2 & 10/9]: [Notice and comment rulemaking processes in the US involve public notice, open-ended hearings, reason-giving, and limited judicial review of the process and of substance (but almost no de novo review). These legal requirements differ sharply from those in other advanced democracies. What are the arguments for and against extending the US procedures to other polities? Similarly, what are the procedural requirements for global institutions and should they imitate the US model—in principle and\or in the specific practices? Also, global regulatory bodies increasingly require or promote the adoption by domestic administrative agencies of procedural requirements of participation, transparency, and review. Is this simply another form of Western legal imperialism?]
  1. Susan Rose-Ackerman, “Policymaking Accountability: Parliamentary versus Presidential Systems,” in David Levi-Faur, ed., Handbook on the Politics of Regulation, Cheltenham UK:Edward Elgar, 2011.
  1. US Administrative Procedure Act, 5 U.S.C. §§551, 553, 701-706
  1. Robert Kagan, American and European Ways of Law: Six Entrenched Differences,” in Volkmar Gessner and David Nelken, eds., European Ways of Law: Toward a European Sociology of Law, Portland OR: Hart Publishing, 2007, pp. 41-70.
  1. Sabino Cassese, "Global Standards for National Administrative Procedure." Law and Contemporary Problems 68: 109-126 (2005)
  1. Peter Strauss, “Rulemaking in the Ages of Globalization and Information: What America Can Learn from Europe and Vice Versa,” Columbia Journal of European Law 12: 645-694 (2005-2006).
  1. R. Daniel Kelemen, “Adversarial Legalism and Administrative Law in the European Union,” in Susan Rose-Ackerman and Peter Lindseth, eds., Comparative Administrative Law (Edward Elgar, 2010), pp. 606-617.

Case Studies:

Bank Regulation: Mario Savino & Maurizia di Bellis, An Unaccountable Transnational-Branch? The Basel Committee {GAL CB I.D.4}; Michael Barr and Geoffrey Miller, “Global Administrative Law: the View from Basel,” The European Journal of International Law 17(1): 15-46 (2006);

Food standards: Dario Bevilacqua, Competing Interests: Food Safety Standards and the Codex Alimentarius Commission {GAL CB II.A.5}; Michael Livermore, “Authority and Legitimacy in Global Governance: Deliberation, Institutional Differentiation, and the Codex Alimentarius,” N.Y.U. L. Rev. 81: 766-801 (2006)

Development Assistance: Mariarita Circi, The World Bank Inspection Panel: The Indian Mumbai Urban Transport Project Case {GAL CB III.B.6}; Gianluca Sgueo, Participation of Indigenous People: The Guatemala Marlin Gold Mine {GAL CB III.B.8}; Mariarita Circi, The Vlora Thermal Power Plant in Albania: a Multiplication of Global Standards? {GAL CB III.B.7]; Mariangela Benedetti, The Bakun Hydroelectric Project: Participatory Rights in Malaysia {GAL CB III.B.9}; Overview: Daniel D. Bradlow, “Private Complainants and International Organizations: A Comparative Study of the Independent Inspection Mechanisms in International Financial Institutions,” 36 Geo. J. Int’l L. 403 (2004- 2005).

Trade Regulation: Richard Stewart and Michelle Ratton Sanchez Badin, The World Trade Organization and Global Administrative Law, supra.

China: Jamie Horsley Public Participation in the People’s Republic: Developing a More Participatory Governance Model in China, Yale China Center, manuscript, 2009:

  1. Transparency and Freedom of Information
  1. Carol Harlow. “Freedom of Information and Transparency as Administrative and Constitutional Rights”, in The Cambridge Yearbook of European Legal Studies, A. Dashwood and A. Ward, eds. Oxford, Hart Publishing. 2: 285-302 (2000).
  1. US Freedom of Information Act, 5 U.S.C. §552,
  1. Megan Donaldson & Benedict Kingsbury, Power and the Public: the nature and effects of formal transparency policies in global governance institutions (draft 2012)

GAL Case Study: Anti-Dumping: Maurizia De Bellis, The Disclosure of Information: Anti-Dumping Duties and the WTO System {GAL CB III.C.2}

  1. The “Rule of Law” and the Protection of Rights [10/16, 10/23—1/2]: due process, proportionality principle, right to good administration [What is meant by the “rule of law”? Is it a concept that is deeply embedded in the common law so that it needs to be reconceptualized for civil law and global systems? Does it refer to procedures and principles that protect individuals from overreaching by power-holders and\or does it refer to the methods by which institutions make binding policies for large groups? Is it tied to the idea of the “state” or can it be formulated to apply to global non-state bodies? How should one deal with disagreements over the meaning of the term?]
  2. Jeremy Waldron ; “The Concept and the Rule of Law” 43 GEORGIA LAW REVIEW (2008), 1-61;
  1. Richard Stewart, Global Regulatory Administration and the Rule of Law: Global Administrative Law”, manuscript July 2012.
  1. David Dyzenhaus, “Accountability and the Concept of Global (Administrative) Law,” IILJ Working Paper 2008/7 (Global Administrative Law Series)
  2. Susan Rose-Ackerman, “Establishing the Rule of Law,” in Robert Rotberg, ed., When States Fail: Causes and Consequences, pp. 182-221 (concentrate on pp. 182-183, 196-212).
  3. Carol Harlow, "Global Administrative Law: The Quest for Principles and Values." European Journal of International Law 17(1): 187-214 (2006).
  1. B. S. Chimni, “Co-option and Resistance: Two Faces of Global Administrative Law,” 15 European Journal of International Law and Politics 799 (2005)
  1. Proportionality:
  2. Jurgen Schwarze, “The Principle of Proportionality” Summary and conclusion of chapter 5, p European Administrative Law, Revised 1st edition,L; Tladi Al Qaidaondon: Sweet and Maxwell, p. 853-866.
  3. Case Study Environmental Regulation and Investment: Stephan W. Schill, Indirect Expropriation and Fair and Equitable Treatment under Investment Treaties: Tecmed v. Mexico {GAL CB III.D.1}
  1. GAL Case Studies
  1. Anti-Terrorism Measures Mario Savino The War on Terror and the Rule of Law: Kadi II {GAL CB III.B.1}; Abousfian Abdelrazik and the Minister of Foreign Affairs and the Attorney General of Canada, 2009 FC 580;General background: Dire Tladi and Gillian Taylor, “On the Al Qaida/Taliban Sanctions Regime: Due Process and Sunsetting,” 10 Chinese Journal of International Law 771-789 (2011);
  1. Water supply Bronwen Morgan, “Turning off the Tap: Urban Water Service Delivery and the Social Construction of Global Administrative Law,” 17 European Journal of International Law 215 (2006).
  1. International Investment Filippo Fontanelli, The Metalclad NAFTA Litigation: What is National Courts’ Role in Investment Arbitration?{GAL CB IV3}.
  1. Refugee Status Emma Dunlop, A Globalized Administrative Procedure: UNHCR’s Determination of Refugee Status and its Procedural Standards{GAL CB III.B.3}
  1. Extradition: Matthias Goldmann, The Right of Access to Information in the Age of Globalization: The Federal Administrative Court and Extraterritorial Renditions {GAL CB VI.A.1}
  1. Review of Administrative Action by Courts and other Bodies [10/23-1/2, 10/30]

[Both core bureaucracies and independent bodies are routinely subject to some kind of judicial review in established democratic states. What should be the nature of such review given the worry that courts will overstep into politics? What role can administrative law play in an authoritarian state such as China? In the international arena, it is not always clear what institution has authority to review decisions—domestic courts, international tribunals, domestic political bodies, or no one.]

  1. Jerry Mashaw, “Judicial Review of Administrative Action: Reflections Balancing Political, Managerial and Legal Accountability,” Revista DIREITOGV 1(special issue 1): 153-170 (2005)
  1. Martin Shapiro, “Judicial Delegation Doctrines: The US, Britain, and France” in Mark Thatcher and Alec Stone Sweet, eds., The Politics of Delegation, Portland OR: Frank Cass, 2003, pp. 172-199.
  1. Paul Craig, “Judicial Review of Questions of Law: A Comparative Perspective,” in Susan Rose-Ackerman and Peter Lindseth, eds., Comparative Administrative Law (Edward Elgar, 2010), pp. 449-465.
  1. Cheng-Yi Huang, “Judicial Deference to Legislative Delegation and Administrative Discretion in New Democracies: Recent Evidence from Poland, Taiwan, and South Africa,” in Susan Rose-Ackerman and Peter Lindseth, eds., Comparative Administrative Law (Edward Elgar, 2010), pp. 466-481.
  1. France:
  2. Jean Massot, “The Powers and Duties of the French Administrative Judge,” in Susan Rose-Ackerman and Peter Lindseth, eds., Comparative Administrative Law (Edward Elgar, 2010), pp. 415-425.
  3. The Council of State {GAL CB VI.B.7D.1}
  1. Great Britain: Robert Carnwath, “Tribunal Justice—A New Start,” United Kingdom Public Law (2009, Jan), 48-69.
  1. China: He Xin, "Administrative Law as a Mechanism for Political Control in Contemporary China," Chapter 9 in Balme & Dowdle, eds., Building Constitutionalism in China (Macmillan: 2009), pp. 143-157. For more background and details read Jianfu Chen, Chinese Law: Context and Transformation, chapter 6: "Administrative Law" (Martinus Nijhoff: 2008), pp. 207-260
  1. Review of global regulatory decisions:
  2. Eyal Benvenisti & George Downs, Court Cooperation, Executive Accountability and Global Governance
  3. Benedict Kingsbury, Weighing Global Regulatory Decisions in National Courts

Case Studies at the Global\Domestic Intersection:

Investment: Stephan W. Schill, “Glamis Gold Ltd. v. United States,” 104 Am. J. Int’l L. 253 (2010); Filippo Fontanelli, The Metalclad NAFTA Litigation: What is National Courts’ Role in Investment Arbitration?{GAL CB IV3}. Hilde Caroli Casavola, The International Centre for Settlement of Investment Disputes: The Tokios Tokelès Case {GAL CB V.12}

Anti-corruption: R (on the application of Corner House Research and others) v. Director of the Serious Fraud Office, [2008] UKHL 60

Development Assistance Projects: Mariarita Circi, The Vlora Thermal Power Plant in Albania: a Multiplication of Global Standards? {GAL CB III.B.7}

Antidoping in sport: Alessandro E. Basilico, Global Review of National Decision: The Case Carlos Queiroz v. Autoridade Antidopagem de Portugal {GAL CB III.A.5}; background on the Court of Arbitration for Sport and the global sports law regimes: Lorenzo Casini and Giulia Mannucci, Hybrid Public-Private Bodies within Global Private Regimes: The World Anti-Doping Agency (WADA) {GAL CB I.C.3};Giulia Mannucci, The Court of Arbitration for Sport: A “Judicial” Law-Maker {GAL CB V.13;

Antidumping: Marco Macchia, Reasonableness and Proportionality: The NAFTA Binational Panel and the Extension of Administrative Justice to International Relations III.D.4

  1. Policymaking Techniques, “Independent” Government Agencies, and “Private” and “Hybrid” Regulatory Bodies [11/6, 11/13] [What institutions should have the authority to make decisions and what substantive principles ought they to use?]
  1. Impact Assessment and cost\benefit analysis [11/6-1/2]

[These techniques are being pushed by some as substantive policymaking standards. What are their strengths and weaknesses? If adopted, as goals for some policies, how could or should they be enforced in either the national or the global context?]

  1. Kenneth Arrow, et al., “Is There a Role for Benefit-Cost Analysis in Environmental, Health, and Safety Regulation” Science 272:221-222 (April 12, 1996).
  1. US Review: EO 12866,
  1. US OMB’s Office of Information and Regulatory Affairs, Appendix D: OMB Circular A-4, Regulatory Analysis, pp. 118-164.
  1. Susan Rose-Ackerman, “Putting Cost/Benefit Analysis in Its Place,” University of Miami Law Review 65(2): 335-355 (2011).
  1. “Better Regulation” and Impact Assessment
  2. Jonathan Wiener and Alberto Alemanno, “Comparing Regulatory Oversight Bodies across the Atlantic: The Office of Information and Regulatory Affairs in the US and the Impact Assessment Board in the EU,” in Susan Rose-Ackerman and Peter Lindseth, eds., Comparative Administrative Law (Edward Elgar, 2010), pp. 309-335.
  3. Alberto Alemanno, Is There a Role for Cost-Benefit Analysis Beyond the State? Chapter 6 in Richard Revesz and Michael Livermore, Cost-Benefit Analysis Goes Global (forthcoming)
  1. “Independent” regulatory bodies. [11/6-1/2, continuing to 11/13]

[In organized states the creation of independent regulatory bodies is often seen as problematic because they stand outside of the political structure of government and are less accountable to political actors than other institutions. What if, in addition, these bodies are organized, staffed and even funded by the private sector? In global ad law, this latter issue is a central concern because many of the bodies of interest necessarily fall into that category. They cannot help being relatively independent because no global state exists. These problems are even more acute in the case of private and hybrid private-public regulatory regimes.]