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This groundbreaking book is the first to look at administration and administrative law in the earliest days of the American republic. Contrary to conventional understandings, Mashaw demonstrates that from the very beginning Congress delegated vast discretion to administrative officials and armed them with extrajudicial adjudicatory, rulemaking, and enforcement authority. The legislative and administrative practices of the U.S. Constitution's first century created an administrative constitution hardly hinted at in its formal text. Beyond describing a history that has previously gone largely unexamined, this book, in the author's words, will \"demonstrate that there has been no precipitous fall from a historical position of separation-of-powers grace to a position of compromise; there is not a new administrative constitution whose legitimacy should be understood as not only contestable but deeply problematic.\"

Federal agencies have taken steps to include the public in a wide range of environmental decisions. Although some form of public participation is often required by law, agencies usually have broad discretion about the extent of that involvement. Approaches vary widely, from holding public information-gathering meetings to forming advisory groups to actively including citizens in making and implementing decisions. Proponents of public participation argue that those who must live with the outcome of an environmental decision should have some influence on it. Critics maintain that public participation slows decision making and can lower its quality by including people unfamiliar with the science involved. This book concludes that, when done correctly, public participation improves the quality of federal agencies' decisions about the environment. Well-managed public involvement also increases the legitimacy of decisions in the eyes of those affected by them, which makes it more likely that the decisions will be implemented effectively. This book recommends that agencies recognize public participation as valuable to their objectives, not just as a formality required by the law. It details principles and approaches agencies can use to successfully involve the public.

The strict procedural rules that characterize modern administrative law are said to be necessary to sustain the fragile legitimacy of a powerful and constitutionally suspect administrative state. We are likewise told that they are essential to public accountability because they prevent factional interests from capturing agencies. Yet the legitimacy-and-accountability narrative at the heart of administrative law is both overdrawn and harmful. Procedural rules have a role to play in preserving legitimacy and discouraging capture, but they advance those goals more obliquely than is commonly assumed and may exacerbate the very problems they aim to fix. This Article aims to draw into question the administrative lawyer's instinctive faith in procedure, to reorient discussion to the trade-offs at the heart of any system designed to structure government action, and to soften resistance to a reform agenda that would undo counterproductive procedural rules. Administrative law could achieve more by doing less.

Namen: Vključevanje umetne inteligence v avtomatizirano odločanje je prelomen trenutek za javno upravo. Prispevek obravnava uvedbo sistemov avtomatiziranega odločanja v upravne postopke, zlasti njihov vpliv na varstvo osebnih podatkov in temeljna načela upravnega prava.Zasnova/metodologija/pristop: Študija s pomočjo deskriptivne, normativne in dogmatske metode proučuje nedavne zakonodajne pobude in analizira izbrane primere uporabe avtomatiziranega odločanja v Sloveniji in tujini. Ob tem podrobneje analizira odločitev Sodišča EU iz leta 2023 v zadevi Schufa. S kombinacijo teoretičnih vidikov in praktičnih spoznanj študija ponuja primerjalno analizo evropskega in slovenskega zakonodajnega okvira.Ugotovitve: Prispevek presoja vpliv avtomatiziranega odločanja na ključna načela upravnega prava in varstva podatkov ter osvetljuje zakonodajne, organizacijske in tehnološke spremembe, potrebne za zagotovitev skladnosti avtomatiziranega določanja z obstoječo zakonodajo.Akademski doprinos k znanosti: Prispevek ponuja dragocene smernice za upravnopravno stroko in tako izboljšuje razumevanje uvajanja tehnologij avtomatiziranega odločanja v upravno prakso. Njegove ugotovitve so oblikovalcem politik in zakonodajalcem lahko v pomoč pri oblikovanju predpisov, ki vključujejo prednosti umetne inteligence, hkrati pa zagotavljajo, da so ti sistemi ustrezno nadzorovani.Raziskovalne/praktične/družbene posledice: Uvedba avtomatiziranega odločanja mora biti usklajena s pravnimi načeli, da se ohranijo preglednost, odgovornost in varstvo temeljnih pravic. Prispevek poudarja, da je pomembno ne le razumeti pravne posledice, temveč tudi zagotoviti, da tehnologije avtomatiziranega odločanja spoštujejo standarde dobrega upravljanja.Izvirnost/vrednost: Študija premika meje uveljavljenih pravnih okvirov in odpira kritična vprašanja o tem, kako temeljna načela upravnega prava in varstva podatkov prilagoditi novim tehnologijam. Umetno inteligenco vsekakor velja izkoristiti za povečanje učinkovitosti, hkrati pa je treba zagotoviti, da inovacije spoštujejo pravice posameznikov, varujejo javni interes ter podpirajo standarde dobre uprave in dobrega upravljanja. Purpose: The integration of artificial intelligence (AI) in automated decision-making (ADM) represents a transformative moment in public administration. This paper explores the incorporation of ADM systems into administrative procedures, focusing on their impact on personal data protection and the fundamental principles underpinning administrative law.Design/Methodology/Approach: Utilising a combination of descriptive, normative, and doctrinal research methods, the study draws on recent regulatory initiatives, analyses selected ADM use cases in Slovenia and abroad, and closely examines the 2023 Schufa case decided by the Court of Justice of the European Union (CJEU). By combining theoretical perspectives with practical insights, the research provides a comparative analysis within the context of EU and Slovenian legal frameworks.Findings: The study assesses how ADM systems interact with, and potentially reshape, key principles of administrative and data protection law. It presents a clear picture of the legislative, organisational, and technological changes required to ensure that ADM systems align with existing legal frameworks.Academic Contribution to the Field: By offering valuable guidance for public administration professionals, the paper enhances the understanding of implementing ADM technologies in administrative practice. Its insights assist policymakers and legislators in crafting regulations that embrace the benefits of AI while ensuring these systems are subject to proper oversight.Research/Practical/Social Implications: The deployment of ADM systems must align with legal principles to maintain transparency, accountability, and the protection of fundamental rights. This paper highlights the importance of not only understanding the legal implications but also ensuring that ADM technologies uphold standards of good governance.Originality/Value: This research extends the boundaries of established legal frameworks and raises critical questions about how core principles of administrative and data protection law can adapt to new technologies. The challenge lies in leveraging AI to increase efficiency while ensuring these innovations respect individual rights, safeguard the public interest, and uphold standards of good administration and governance.  

Judicial deference to executive statutory interpretation — a doctrine now commonly associated with the Supreme Court's decision in Chevron v. Natural Resources Defense Council—is one of the central principles in modern American public law. Despite its significance, however, the doctrine's origins and development are poorly understood. The Court in Chevron claimed that the roots of judicial deference stem from statutory interpretation cases dating to the early nineteenth century. Others, by contrast, have sought to locate Chevron's doctrinal roots in judicial review's origins in the writ of mandamus. According to the standard narrative, courts in the pre-Chevron era followed a multifactor and ad hoc approach to issues of judicial deference; there was little theory that explained the body of cases; and the holdings and reasoning of the cases were often contradictory and difficult to rationalize. This Article challenges the standard account. It argues that the Supreme Court in Chevron, and scholarly commentators since, have misidentified nineteenth-century statutory interpretation cases applying canons of construction \"respecting\" contemporaneous and customary interpretation as cases deferring to executive interpretation as such. It further argues that, although the standard for obtaining a writ of mandamus was central to judicial review in the early Republic, statutory developments in the latter half of the nineteenth century (significantly, the enactment of general federal-question jurisdiction in 1875) ultimately mooted the relevance of that standard. Finally, it discusses the intellectual challenges to the traditional interpretive framework beginning in the early twentieth century; the Supreme Court's embrace of these intellectual challenges in the early 1940s; and Congress's attempt in the Administrative Procedure Act's (APA) standard-of-review provision to reject the Court's interpretive experimentation and corresponding deviation from the traditional canons. The Article thus seeks to establish — contrary to the suggestion in Chevron and recent cases — that there was no rule of statutory construction requiring judicial deference to executive interpretation qua executive interpretation in the early American Republic. And it contends that the governing statute of administrative law—the APA—was intended to codify the traditional interpretive approach and to reject the experimentation of the 1940s Court. Taken together, these conclusions cast doubt on much of the received wisdom on the doctrinal basis for the rule announced in Chevron.

When reviewing agency action, the Administrative Procedure Act (APA) instructs courts to \"review the whole record or those parts of it cited by a party.\" The Supreme Court has interpreted this brief statement as a restriction on the evidentiary scope of judicial review under the APA. Courts may consider only the administrative record compiled by the agency, which includes all materials before the decisionmaker at the time he or she made the decision. The Supreme Court has recognized one exception: plaintiffs may supplement the administrative record if they make a strong showing of bad faith or improper behavior on the part of the agency. Courts consistently apply the record rule to arbitrary and capricious claims. It is less clear whether the rule applies to constitutional claims. This issue crept into two recent, high-profile Supreme Court cases—Department of Commerce v. New York and Regents of the University of California v. Department of Homeland Security—but the Court has yet to definitively resolve the issue. In the meantime, lower courts have developed three alternative approaches. This Comment argues that the record rule, though one with a robust bad faith exception, should apply to all constitutional challenges to agency action. It analyzes the APA's text, legislative history, pre- and post-APA precedent, and policy considerations to argue for a record rule approach.

Despite dramatic changes in the modern regulatory state over the last seven decades, Westlaw reports that Congress has only amended the Administrative Procedure Act sixteen times since its enactment in 1946. The current political climate may present an ideal opportunity for much-needed bipartisan legislative action. This Essay introduces the American Bar Association’s 2016 consensus-driven recommendations to reform the Administrative Procedure Act and then concludes that the Portman–Heitkamp Regulatory Accountability Act of 2017, which incorporates seven of the ABA’s nine recommendations, is the type of common-sense, bipartisan legislation needed to modernize the APA.

Modern doctrine about judicial review of administrative action traces back to Association of Data Processing Service Organizations v. Camp (1970). There, the Supreme Court announced a new test for deciding whether a plaintiff has \"standing\" to challenge the legality of an action taken by a federal agency. Judges were simply supposed to ask (1) \"whether the plaintiff alleges that the challenged action has caused him injury in fact\" and (2) \"whether the interest sought to be protected by the [plaintiff] is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee\" that the challenged action allegedly violated. Partly because of intervening scholarship, modern courts and commentators have translated Data Processing's discussion of \"standing\" into the language of remedial rights (or \"rights of action\"). At least since the 1980s, Data Processing has been understood to hold that when a federal agency oversteps its authority, the Administrative Procedure Act normally confers remedial rights upon everyone who satisfies Data Processing's test for \"standing.\" That is an exceptionally important aspect of modern administrative law. But it is mistaken—not just about the Administrative Procedure Act, but also about what Data Processing itself held. This Article shows that Data Processing's concept of \"standing\" was only a preliminary screen, not the last word about whether plaintiffs have a claim for relief. The Supreme Court has never made a considered decision that when an agency is behaving unlawfully, the Administrative Procedure Act confers the same remedial rights upon plaintiffs whose interests are only \"arguably\" within a protected zone as upon plaintiffs whose interests are actually protected.