21世纪的美国行政法(英文).doc

Administrative Law of the United States the twenty-first century Richard B. StewartAdministrative law in a free and democratic society, its own administrative rules and regulations will be subject to administrative regulations. Administrative law established executive in the entire political system in the framework of status; set to take a decision that the executive must follow the procedural requirements; provides for an independent judiciary may be to review the possibility of administrative acts and scope. It to the administration and the administrative regulations of the various key areas in the provision of the universal principles and procedural requirements. Traditionally, the essence of administrative law focuses on how the executive authorities in accordance with the fair and unbiased process,The statutory mandate and to respect the private rights of way to such acts to ensure the rule of law, protection of freedom. Here, the functions of administrative law is a negative sense of the (negative), that is designed to prevent the executive power with a mandatory private individuals for the illegal use or misuse.In the last decade, the United States administrative law is also some positive take on the mission. Adoption of new procedural requirements and judicial review of a new channel through which the executive authorities to ensure that a reasonable and thorough consideration of those decisions because it will be in the economic and social interests affected by a wide range of related interests ( including the provisions of the beneficiaries and be bound by the provisions and sanctions of the person) the way, we can make policy decisions.The current status of the U.S. administration: the management of weak laws and regulations (Fatigue) Today, we face a growing weakness in the administration of this acute problem. Increasing the public needs the protection of the law, but it seems more and more administrative bodies can not be an effective and efficient way of providing such protection. Generally speaking, the development and adoption of a new law takes a very long time, the implementation of this law is also very time-consuming. The outcome of management is often not only fail to achieve the desired objectives, but also led to more trouble. In my opinion,The main reason for this predicament is that we rely too much on command - control of the administrative model. In the past 50 years, the use of this model has enabled us to achieve the agreed objectives are met. However, in a large and multi-ethnic country where this model is still an attempt to regulate the system through the command in a rapidly changing and complex economic and social environment in the conduct of tens of thousands of people, it is bound to expose its inherent drawbacks exhaustive, especially in the adoption of uniform federal laws and regulations of the management time. As a result of intensive management, these issues will become increasingly more serious. Federal executive authorities developed a detailed action plan due to the lack of flexibility and easy to outdated(Obsolescence), and thus not only add to the burden and inefficiency. In addition to affecting the efficiency of administration, the rigid, unilateral control (unresponsive Controls) also affected the expansion of its legitimacy, and not conducive to accountability. With these questions need for public order due to management of federal expansion and intensification of the more serious.We now rely on two main organs for the development of administrative regulations and policies contained in the volume of the free right to the administrative law model of regulation will not solve the inherent drawbacks of the above. In fact, they are doing so they will become even worse, that is exacerbated by weak administration. Driven by the legal person (Lawyer-driven) models represent the interests of the administration process will delay the process too much. Spend the majority of laws and regulations at least 5 years to be passed. Judicial review is also time-consuming, but if the court finds that administrative regulations invalid, the executive body can also make a requirement.Of course, some basis for this understanding, that is, at the federal level in the regulation of the market has a serious problem, but our question is how to solve the problem?New management practices. The answer lies in the use of new management methods and means to resolve the past due to over-reliance on command - to control the problems brought about by the model. Practice in the administration, there are two new models began to appear that the Government - the network of stakeholders in the framework of (government-stakeholder network structures) and economic incentive systems (economy incentive systems).In order to avoid top-down (top-down) order management, as well as the required administrative procedures of the formal defects in children born as a new type of solution of the executive authorities - the network of stakeholders in various forms mode is to develop. Unlike past attempts to unilaterally decide the kind of behavior by managers, the executive authorities in the formulation and implementation of administrative regulations have been created in a variety of strategies to win, including commercial enterprises and non-profit groups, various government and non-governmental organizations support. Here are a few examples: the executive authorities in the establishment of formal administrative procedures and regulations to develop legislation,From the business with the public and representatives of state and local governments to reach agreement in consultation with each other; the administrative institutions in the provision of municipal services and administrative aspects of health care and governmental and non-governmental entities, collaborative arrangements; for Endangered Species Protection Act (Endangered species Act) of the strict rules governing the management of natural resources by the Federal agencies designated to protect local residents, land owners, developers and local government consultations between. In the above example, the federal executive authorities take the initiative in this process in order to occupy a dominant position, the result is the basis of consultations with the participants to reach a quasi -The contractual nature of the relationship between the administration and then to solve the problems. Production method is different from the centralized (centralized mass production), this approach believes in the development of post-industrial era strategies and regulations. The main features of its behavior in its wealth to the flexibility, innovation, with the benchmark procedure (benchmarking), transparency, and can make each other informed. In the EU, this approach in the public law consensus (Open Method of Coordination) is widely used under implementation in the Member States in the management of social services programs. Administrative agencies seem to have many reasons to adopt this strategy so as to promote the achievement of its objectives: to reduce the result of a more formal procedures for the cost of doing business; to ensure the cooperation of the voters to support rather than hinder the achievement of the objectives of the executive authorities; take full advantage of voter knowledge and experience, and to ensure that their more effective participation in the implementation of the policy to. Non-governmental voters (Nongovernmental constituencies) have sufficient power to participate in this process. To study the interaction of participants as well as through the manner in which incentives can be designed so that different systems are widely recognized to be an extremely important issue.Some network management methods and even different from the command mode, which allows the executive directly from the substance of the relative links and a long-range exit strategy to manage the (government at a distance). For example, the Environmental Protection Agency (EPA) list of toxic substances emissions (TRI) information required to publisher monitoring, reporting and publication of various facilities by the emission of air pollutants. As a result of information disclosure from non-official pressure, thereby greatly reducing the emission of pollutants. Based on the method has been used to promote the field of health management, health care goals.Other examples include the Government-to-business initiative to track and improve the environmental management of pollution and regulatory system to encourage, as well as the Environmental Protection Agency and the Department of Energy (Energy Department) with the industry in reducing energy consumption and carbon dioxide emissions by the voluntary cooperation agreement. These were referred to as the anti-shenfa (reflexive law) approach, the Government through the provision of means of reference standards and the exchange of non-governmental entities to promote self-management. In the securities, broadcasting, film the area of rules of self-management of this strategy is another classic.Secondly, the weak against the management of emerging issues and a completely different approach is the use of economic incentive systems. For example, allow the collection of pollution taxes, infrastructure and environmental protection costs. Unlike the past, peoples behavior to make an order directly, the use of price leverage this approach (such as taxes on emissions units), this form so that peoples behavior in accordance with established goals; but at the same time was left to managers to select the cost act the way the minimum flexibility. Pollution tax system to stimulate private sector R & D and the use of less polluting modes of production. Logically,Economic incentives is beyond the management of the existing budget process a step forward. It is not the use of economic instruments to regulate the system administrators have been authorized, but in order to reduce the authorized use of economic means to manage and re-market itself to the achievement of management objectives of the force. Do not misunderstand, this does not mean that state to go back to laissez-faire (Liaissez-faire). To make this approach effective, must be closely monitored and strict implementation of these systems in order to prevent deception. With respect to the traditional command-based management, this system can be a reasonable design and implementation to reduce pollutant emissions while achieving substantial savings and costs (up to 50% or more) of double effect.In order to win wider recognition, the new management methods to provide better management results. They will also encounter the legitimacy of legal liability and policy issues. Network management strategy intended to form a joint collaboration of the vague traditional sense of the distinction between public and private. The premise of this approach is that it must be consistent with the representation of the management of the areas covered by the match, which is increasingly cross-jurisdictional phase. In response to a management network to participate in the formation of a person with expertise and experience of the team, but these participants represent different social strata and economic sectors, the interests and perspectives.These features make the management of emerging policies will have to spend a long time to work on. However, network management has deliberately detract from the formal laws and regulations to develop and implement behavior. However, as we know, this is the core of administrative law. In accordance with anti-shenfa point of view, the Government is like the Cheshire Cat (Cheshire Cat) It is almost not coming out of. When an important decision was to participation by non-governmental sector to the informal procedures, the law and how to prevent power from being abused by some people? How can we bound by the tyranny of experts (tyranny of expertise)? How to ensure that the final conclusion is that taking into account the interests of the public ones? Including how to ensure a fair distribution?This is not a network management has the legal accountability of the entity. However, in many cases, network management procedures relating to government eventually could have authorized a memorandum of mutual understanding, licensing, and even the official rules and regulations, including the formal legal arrangements. Thus, when the use of this power in clear violation of the Constitution, the law limits that they are subject to judicial review. Many involved in the process of government, no matter what level, should be reviewed by the relevant court. Even if it is passive, but the administrative function of the power of checks and balances can be maintained successfully. It is hard to tell,Decision-making based on the norms of the formal legal process on how to represent the interests of model can be successfully applied to network management. In addition, the decision how to make the network model can be successfully based on the mode of management and budget analysis of the mechanism on the review of legislation is quite problematic.Network model advocates argue that open and transparent notice and the clearing-house mechanism to provide a security guarantee, as well as procedures for review of a room to stay. However, this method has not been clearly explained. The federal government will be the benchmark in the formulation of procedures and management practices to ensure that the appropriate monitoring and reporting play a major role. Because it can enhance the visibility of the policy (visibility) and management obligations on the note. However, like other methods of administrative law, as in the efficiency of this met