| |
| |
Preface | |
| |
| |
Acknowledgments | |
| |
| |
About the Authors | |
| |
| |
| |
The Administrative State, Democratic Constitutionalism, and the Rule of Law | |
| |
| |
| |
The Problem: Retrofitting the American Administrative State into the Constitutional Scheme | |
| |
| |
| |
Public Administration and American Constitutionalism | |
| |
| |
| |
The American Public Administrative �Orthodoxy� | |
| |
| |
| |
�Reinvented� Public Administration: Toward a New Public Management | |
| |
| |
| |
U.S. Constitutionalism | |
| |
| |
| |
Efficiency | |
| |
| |
| |
Who's in Charge of Public Administration? | |
| |
| |
| |
Consolidation of Functions | |
| |
| |
| |
Instrumentalism and Utilitarianism versus Contractarianism | |
| |
| |
| |
Spending | |
| |
| |
| |
Collective Action | |
| |
| |
| |
Contractarianism | |
| |
| |
| |
Regulation versus Liberty and Property Rights | |
| |
| |
| |
Legitimacy | |
| |
| |
| |
Controlling Administrative Discretion: The Role of Law | |
| |
| |
| |
Judicial Responses to the Administrative State | |
| |
| |
| |
Judicial Opposition to the Administrative State (1890s-1936) | |
| |
| |
| |
Judicial Acquiescence in the Administrative State (1937-Early 1950s) | |
| |
| |
| |
Constitutionalization and Partnership: The 1950s Forward | |
| |
| |
| |
Conclusion: Retrofitting as an Incremental Project | |
| |
| |
References | |
| |
| |
Cases | |
| |
| |
Articles, Books, and Documents | |
| |
| |
| |
Administrative Law and the Judiciary Today | |
| |
| |
| |
The Commerce Clause | |
| |
| |
| |
Delegated Power | |
| |
| |
| |
The Federal Government's Administrative Law Framework | |
| |
| |
| |
Judicial Review of Agency Action | |
| |
| |
| |
Statutory Interpretation | |
| |
| |
| |
Substantial Evidence Review of Facts | |
| |
| |
| |
Abuse of Discretion Review | |
| |
| |
| |
Remand | |
| |
| |
| |
Review of Rules and Regulations | |
| |
| |
| |
Review of Informational Activity | |
| |
| |
| |
Administrative Searches | |
| |
| |
| |
Freedom of Information | |
| |
| |
| |
Privacy Act | |
| |
| |
| |
Open Meetings | |
| |
| |
| |
Federal Advisory Committee Act | |
| |
| |
| |
Adjudications | |
| |
| |
| |
Notice | |
| |
| |
| |
Intervention | |
| |
| |
| |
Procedures | |
| |
| |
| |
Expertise | |
| |
| |
| |
Rulemaking | |
| |
| |
| |
Review of Executive Orders | |
| |
| |
| |
Alternatives to Litigation | |
| |
| |
| |
Ombuds | |
| |
| |
| |
Regulatory Negotiation | |
| |
| |
| |
Conclusion | |
| |
| |
References | |
| |
| |
Cases | |
| |
| |
Articles, Books, and Documents | |
| |
| |
| |
Environmental Law: Changing Public Administration Practices | |
| |
| |
| |
Judicial Review of Agency Actions | |
| |
| |
| |
Standing to Sue: The Case of Global Warming | |
| |
| |
| |
Ripeness and Standard of Review: The Case of Timber Cutting | |
| |
| |
| |
Standard of Review: The Case of Air Quality | |
| |
| |
| |
Interpretation of Environmental Laws | |
| |
| |
| |
Interpreting Statutes: Two Cases Concerning the Endangered Species Act | |
| |
| |
| |
Interpreting Statutes and the Constitution: Regulatory Takings and Land Use | |
| |
| |
| |
Choice of Remedy | |
| |
| |
| |
The Growth of Environmental Conflict Resolution | |
| |
| |
| |
ECR Processes | |
| |
| |
| |
Consensus-Based Processes | |
| |
| |
| |
Conflict Assessment (Convening) | |
| |
| |
| |
Facilitation | |
| |
| |
| |
Mediation | |
| |
| |
| |
Conciliation | |
| |
| |
| |
Negotiated Rulemaking | |
| |
| |
| |
Policy Dialogues | |
| |
| |
| |
Quasi-Adjudicatory Processes | |
| |
| |
| |
Early Neutral Evaluation | |
| |
| |
| |
Minitrials and Summary Jury Trials | |
| |
| |
| |
Settlement Judges | |
| |
| |
| |
Fact-Finding | |
| |
| |
| |
Arbitration | |
| |
| |
| |
Conclusion | |
| |
| |
References | |
| |
| |
Cases | |
| |
| |
Articles, Books, and Documents | |
| |
| |
| |
The Constitutionalization of Public Administrative Action | |
| |
| |
| |
The Individual as Client and Customer of Public Agencies | |
| |
| |
| |
The Public Administration of Services | |
| |
| |
| |
Traditional Public Administration | |
| |
| |
| |
The New Public Management and Reinventing Government Movements | |
| |
| |
| |
Constraining Clients: The Problem of Conditional Benefits | |
| |
| |
| |
Clients and Customers in Court: The Traditional Response | |
| |
| |
| |
The Demise of the Doctrine of Privilege | |
| |
| |
| |
Redefining Equal Protection | |
| |
| |
| |
Equal Protection Today | |
| |
| |
| |
Unconstitutional Conditions: Protecting Clients' and Customers' Substantive Rights | |
| |
| |
| |
The �New Property�: Expanding Clients' and Customers' Rights to Procedural Due Process | |
| |
| |
| |
A Constitutional Limit to Clients' and Customers' Interests in Public Benefits | |
| |
| |
| |
The Case Law in Sum | |
| |
| |
| |
Impact on Public Administration | |
| |
| |
References | |
| |
| |
Cases | |
| |
| |
Articles, Books, and Documents | |
| |
| |
| |
Street-Level Encounters | |
| |
| |
| |
The Need for Street-Level Intuition versus the Fear of Arbitrary or Discriminatory Administration and Law Enforcement | |
| |
| |
| |
The Fourth Amendment | |
| |
| |
| |
Inspectors | |
| |
| |
| |
Trash Inspections | |
| |
| |
| |
Inventory Searches | |
| |
| |
| |
Requests for Identification | |
| |
| |
| |
Sweep Searches | |
| |
| |
| |
Random Stops | |
| |
| |
| |
Highway and Transportation Checkpoints | |
| |
| |
| |
Border Searches | |
| |
| |
| |
Drug Testing | |
| |
| |
| |
Impact on Public Administration | |
| |
| |
References | |
| |
| |
Cases | |
| |
| |
Articles and Books | |
| |
| |
| |
The Individual as Government Employee or Contractor | |
| |
| |
| |
Public Administrative Values and Public Employment | |
| |
| |
| |
Constitutional Values in Public Employment | |
| |
| |
| |
Considering Whether the Constitution Should Apply to Public Employment | |
| |
| |
| |
Judicial Doctrines | |
| |
| |
| |
The Doctrine of Privilege and Government Employment | |
| |
| |
| |
The Transformational Case | |
| |
| |
| |
| |
Finding a New Approach: The Emergence of the Public Service Model | |
| |
| |
| |
The Structure of Public Employees' Constitutional Rights Today | |
| |
| |
| |
Substantive Rights | |
| |
| |
| |
Speech on Matters of Public Concern | |
| |
| |
| |
�Work Product� Speech | |
| |
| |
| |
Partisan Speech and Activity | |
| |
| |
| |
Freedom of Association | |
| |
| |
| |
Protection against Unreasonable Searches and Seizures | |
| |
| |
| |
Procedural Due Process | |
| |
| |
| |
Equal Protection | |
| |
| |
| |
Substantive Due Process | |
| |
| |
| |
Enforcing Public Employees' Constitutional Rights | |
| |
| |
| |
Government Contractors | |
| |
| |
| |
Conclusion: The Courts, Public Personnel Management, and Contracting | |
| |
| |
References | |
| |
| |
Cases | |
| |
| |
Articles, Books, and Documents | |
| |
| |
| |
The Individual as Inmate in Administrative Institutions | |
| |
| |
| |
Administrative Values and Practices | |
| |
| |
| |
Total Institutions and Public Administrative Values | |
| |
| |
| |
Theory and Practice in Public Total Institutions Prior to Reform in the 1970s | |
| |
| |
| |
Mental Health Facilities | |
| |
| |
| |
Conditions on the Ground | |
| |
| |
| |
Prisons | |
| |
| |
| |
Conditions on the Ground | |
| |
| |
| |
Transformational Cases | |
| |
| |
| |
A Fourteenth Amendment Right to Treatment | |
| |
| |
| |
| |
Redefining Cruel and Unusual Punishment | |
| |
| |
| |
| |
Subsequent Developments: The Right to Treatment and Prisoners' Rights Today | |
| |
| |
| |
The Right to Treatment | |
| |
| |
| |
The Eighth Amendment: Conditions of Confinement | |
| |
| |
| |
Prison Administrators' Personal Liability under the Eighth Amendment | |
| |
| |
| |
Prisoners' Additional Constitutional Rights | |
| |
| |
| |
Implementation and Impact | |
| |
| |
| |
Public Mental Health Administration | |
| |
| |
| |
Prisons and Jails | |
| |
| |
| |
Conclusion: Consequences for Public Administrators | |
| |
| |
| |
Integrating Constitutional Values, Law, and Day-to-Day Administrative Operations | |
| |
| |
| |
From Few Actors to Many | |
| |
| |
| |
Budget Pressures | |
| |
| |
References | |
| |
| |
Cases | |
| |
| |
Articles, Books, and Documents | |
| |
| |
| |
The Individual as Antagonist of the Administrative State | |
| |
| |
| |
The Antagonist of the Administrative State | |
| |
| |
| |
The Antagonist in Court: Traditional Approaches | |
| |
| |
| |
Public Administrators' Liability and Immunity | |
| |
| |
| |
The Civil Rights Act of 1871 | |
| |
| |
| |
Absolute Immunity | |
| |
| |
| |
Qualified Immunity | |
| |
| |
| |
Suing States and Their Employees | |
| |
| |
| |
Failure to Train or to Warn | |
| |
| |
| |
Public Law Litigation and Remedial Law | |
| |
| |
| |
The Supreme Court and Remedial Law | |
| |
| |
| |
Standing | |
| |
| |
| |
State Action Doctrine, Outsourcing, and Private Entities' Liability for Constitutional Torts | |
| |
| |
| |
Conclusion | |
| |
| |
References | |
| |
| |
Cases | |
| |
| |
Articles and Books | |
| |
| |
| |
Law, Courts, and Public Administration | |
| |
| |
| |
Judicial Supervision of Public Administration | |
| |
| |
| |
Administrative Values and Constitutional Democracy | |
| |
| |
| |
Assessing the Impact of Judicial Supervision on Public Administration | |
| |
| |
| |
The Next Steps: Public Service Education and Training in Law | |
| |
| |
References | |
| |
| |
Cases | |
| |
| |
Articles, and Books | |
| |
| |
Index | |