29 dic. 2009
1 dic. 2009
Tiago Fidalgo de Freitas (European University Institute Law Department) has posted "Portuguese Migration Law - A Constitutional and Administrative Overview" (European Review of Public Law, Vol. 21, No. I, pp. 345-401, 2009). Here's the abstract:
This paper analyzes both the constitutional and the administrative law perspectives of immigration law in Portugal. In the first part, an account of the constitutional principle of assimilation between the rights and duties of Portuguese citizens and those of foreigners is offered. In the second part, the most relevant aspects of the Immigration Act are analyzed: the admission of foreigners, the residence of foreigners and the status of residents, the removal of foreigners from the Portuguese territory and the principles of administrative procedure.
Richard H. Pildes: "Separation of Powers, Independent Agencies, and Financial Regulation: The Case of the Sarbanes-Oxley Act"
20 nov. 2009
Anecdotal evidence of agencies burying bad news is rife in law and politics. The bureaucracy regularly is accused of announcing controversial policies on holidays and weekends when public attention is elsewhere. We show that this conventional wisdom is wrong, or at least significantly incomplete. The conventional wisdom is riddled with theoretical holes, and there is little systematic empirical evidence to support it. After critiquing the conventional account of agencies hiding bad news, we articulate and defend a revised theory of strategic timing in administrative law. We argue that timing decisions rarely affect the visibility of decisions but can drive up the costs of monitoring and responding for interest groups and legislative coalitions. Agency discretion to choose when to announce policy decisions can even allow agencies to influence which interest groups monitor the regulatory process and therefore whose preferences must be taken into account. We evaluate both the conventional wisdom and our revised theory using twenty-five years of empirical evidence. We then develop the implications for administrative law doctrine and institutional design of the bureaucracy.
In the Introduction to the symposium edition of the law review, Justice Sandra Day O'Connor states: "Colorado administrative law judge Edwin L. Felter, Jr., [then] discusses and evaluates several forms of accountability in the administrative law judiciary, and compares them with prevalent forms of accountability in the judicial branch. Felter argues that codes of judicial conduct, as well as formal enforcement mechanisms, work together to maintain a balance of independence and accountability in the administrative law judiciary."
The article analyzes the "right kinds" of accountability as distinguished from the "wrong kind" of accountability, i.e., political accountability.
The article maintains that the first mechanism of accountability for all judicial and quasi-judicial officers is the requirement of "reasoned elaboration,"which is the prerequisite to second form of accountability, judicial review. The next mechanism is accountability to the relevant code of judicial conduct. Indeed, the 2007 ABA Model Code of Judicial Conduct refers to the administrative law judiciary. All codes of judicial conduct espouse the values of independence, impartiality, integrity, diligence and competence.
The article concludes with an argument against political evaluations of judges because these evaluations are generally based on the wrong reasons, e.g., the political clamor of the day. The article takes issue with James Bopp, Jr., Esq., of Indiana (who successfully argued Republican Party of Minnesota v. White before the U.S. Supreme Court), who maintains that judges should be responsive to the electorate and should be free to make campaign promises, e.g. "elect me and I'll string up those criminals." The article recommends that administrative law judges must constantly create, develop and implement meaningful accountability measures that demonstrate a high degree of accountability.