Public Administration and Law, Third Edition

by Rosenbloom; David H.

• ISBN13: 9781439803981
• ISBN10: 1439803986
• Edition: 3rd
• Format: Hardcover
• Copyright: 2010-06-23
• Publisher: Routledge

Summary

Since the first edition of Public Administration and Law was published in 1983, it has retained its unique status of being the only book in the field of public administration that analyzes how constitutional law regulates and informs the way administrators interact with each other and the public. Examining First, Fourth, Fifth, Eighth, and Fourteenth Amendment rights as they pertain to these encounters, it explains how public administrators must do their jobs and how administrative systems must operate in order to comply with constitutional law.

Table of Contents

Preface	p. xvii
Acknowledgments	p. xxi
About the Authors	p. xxiii
The Administrative State, Democratic Constitutionalism, and the Rule of Law
The Problem: Retrofitting the American Administrative State into the Constitutional Scheme	p. 3
Public Administration and American Constitutionalism	p. 4
The American Public Administrative ôOrthodoxyö	p. 5
ôReinventedö Public Administration: Toward a New Public Management	p. 8
U.S. Constitutionalism	p. 11
Efficiency	p. 12
Who's in Charge of Public Administration?	p. 13
Consolidation of Functions	p. 18
Instrumentalism and Utilitarianism versus Contractarianism	p. 19
Spending	p. 19
Collective Action	p. 20
Contractarianism	p. 22
Regulation versus Liberty and Property Rights	p. 24
Legitimacy	p. 27
Controlling Administrative Discretion: The Role of Law	p. 31
Judicial Responses to the Administrative State	p. 35
Judicial Opposition to the Administrative State (1890s-1936)	p. 36
Judicial Acquiescence in the Administrative State (1937-Early 1950s)	p. 39
Constitutionalization and Partnership: The 1950s Forward	p. 41
Conclusion: Retrofitting as an Incremental Project	p. 43
References	p. 44
Cases	p. 44
Articles, Books, and Documents	p. 46
Administrative Law and the Judiciary Today	p. 51
The Commerce Clause	p. 52
Delegated Power	p. 55
The Federal Government's Administrative Law Framework	p. 57
Judicial Review of Agency Action	p. 62
Statutory Interpretation	p. 63
Substantial Evidence Review of Facts	p. 65
Abuse of Discretion Review	p. 66
Remand	p. 66
Review of Rules and Regulations	p. 67
Review of Informational Activity	p. 67
Administrative Searches	p. 67
Freedom of Information	p. 68
Privacy Act	p. 69
Open Meetings	p. 69
Federal Advisory Committee Act	p. 70
Adjudications	p. 71
Notice	p. 71
Intervention	p. 71
Procedures	p. 72
Expertise	p. 72
Rulemaking	p. 73
Review of Executive Orders	p. 75
Alternatives to Litigation	p. 76
Ombuds	p. 77
Regulatory Negotiation	p. 78
Conclusion	p. 79
References	p. 80
Cases	p. 80
Articles, Books, and Documents	p. 81
Environmental Law: Changing Public Administration Practices	p. 85
Judicial Review of Agency Actions	p. 86
Standing to Sue: The Case of Global Warming	p. 87
Ripeness and Standard of Review: The Case of Timber Cutting	p. 90
Standard of Review: The Case of Air Quality	p. 92
Interpretation of Environmental Laws	p. 93
Interpreting Statutes: Two Cases Concerning the Endangered Species Act	p. 94
Interpreting Statutes and the Constitution: Regulatory Takings and Land Use	p. 97
Choice of Remedy	p. 100
The Growth of Environmental Conflict Resolution	p. 102
ECR Processes	p. 105
Consensus-Based Processes	p. 105
Conflict Assessment (Convening)	p. 106
Facilitation	p. 106
Mediation	p. 106
Conciliation	p. 107
Negotiated Rulemaking	p. 107
Policy Dialogues	p. 107
Quasi-Adjudicatory Processes	p. 108
Early Neutral Evaluation	p. 108
Minitrials and Summary Jury Trials	p. 109
Settlement Judges	p. 109
Fact-Finding	p. 109
Arbitration	p. 110
Conclusion	p. 110
References	p. 111
Cases	p. 111
Articles, Books, and Documents	p. 112
The Constitutionalization of Public Administrative Action
The Individual as Client and Customer of Public Agencies	p. 115
The Public Administration of Services	p. 116
Traditional Public Administration	p. 116
The New Public Management and Reinventing Government Movements	p. 120
Constraining Clients: The Problem of Conditional Benefits	p. 121
Clients and Customers in Court: The Traditional Response	p. 124
The Demise of the Doctrine of Privilege	p. 127
Redefining Equal Protection	p. 128
Equal Protection Today	p. 130
Unconstitutional Conditions: Protecting Clients' and Customers' Substantive Rights	p. 133
The ôNew Propertyö: Expanding Clients' and Customers' Rights to Procedural Due Process	p. 137
A Constitutional Limit to Clients' and Customers' Interests in Public Benefits	p. 142
The Case Law in Sum	p. 143
Impact on Public Administration	p. 144
References	p. 147
Cases	p. 147
Articles, Books, and Documents	p. 148
Street-Level Encounters	p. 151
The Need for Street-Level Intuition versus the Fear of Arbitrary or Discriminatory Administration and Law Enforcement	p. 155
The Fourth Amendment	p. 158
Inspectors	p. 159
Trash Inspections	p. 161
Inventory Searches	p. 162
Requests for Identification	p. 165
Sweep Searches	p. 168
Random Stops	p. 169
Highway and Transportation Checkpoints	p. 170
Border Searches	p. 173
Drug Testing	p. 173
Impact on Public Administration	p. 175
References	p. 176
Cases	p. 176
Articles and Books	p. 177
The Individual as Government Employee or Contractor	p. 179
Public Administrative Values and Public Employment	p. 180
Constitutional Values in Public Employment	p. 184
Considering Whether the Constitution Should Apply to Public Employment	p. 185
Judicial Doctrines	p. 189
The Doctrine of Privilege and Government Employment	p. 189
The Transformational Case	p. 191
Finding a New Approach: The Emergence of the Public Service Model	p. 193
The Structure of Public Employees' Constitutional Rights Today	p. 196
Substantive Rights	p. 196
Speech on Matters of Public Concern	p. 196
ôWork Productö Speech	p. 198
Partisan Speech and Activity	p. 199
Freedom of Association	p. 200
Protection against Unreasonable Searches and Seizures	p. 202
Procedural Due Process	p. 203
Equal Protection	p. 205
Substantive Due Process	p. 206
Enforcing Public Employees' Constitutional Rights	p. 206
Government Contractors	p. 207
Conclusion: The Courts, Public Personnel Management, and Contracting	p. 212
References	p. 214
Cases	p. 214
Articles, Books, and Documents	p. 216
The Individual as Inmate in Administrative Institutions	p. 219
Administrative Values and Practices	p. 220
Total Institutions and Public Administrative Values	p. 221
Theory and Practice in Public Total Institutions Prior to Reform in the 1970s	p. 227
Mental Health Facilities	p. 227
Conditions on the Ground	p. 230
Prisons	p. 231
Conditions on the Ground	p. 233
Transformational Cases	p. 238
A Fourteenth Amendment Right to Treatment	p. 238
Redefining Cruel and Unusual Punishment	p. 241
Subsequent Developments: The Right to Treatment and Prisoners' Rights Today	p. 242
The Right to Treatment	p. 242
The Eighth Amendment: Conditions of Confinement	p. 246
Prison Administrators' Personal Liability under the Eighth Amendment	p. 248
Prisoners' Additional Constitutional Rights	p. 252
Implementation and Impact	p. 254
Public Mental Health Administration	p. 255
Prisons and Jails	p. 257
Conclusion: Consequences for Public Administrators	p. 259
Integrating Constitutional Values, Law, and Day-to-Day Administrative Operations	p. 260
From Few Actors to Many	p. 260
Budget Pressures	p. 261
References	p. 262
Cases	p. 262
Articles, Books, and Documents	p. 264
The Individual as Antagonist of the Administrative State	p. 267
The Antagonist of the Administrative State	p. 268
The Antagonist in Court: Traditional Approaches	p. 270
Public Administrators' Liability and Immunity	p. 271
The Civil Rights Act of 1871	p. 272
Absolute Immunity	p. 275
Qualified Immunity	p. 278
Suing States and Their Employees	p. 287
Failure to Train or to Warn	p. 287
Public Law Litigation and Remedial Law	p. 288
The Supreme Court and Remedial Law	p. 291
Standing	p. 292
State Action Doctrine, Outsourcing, and Private Entities' Liability for Constitutional Torts	p. 294
Conclusion	p. 297
References	p. 298
Cases	p. 298
Articles and Books	p. 300
Law, Courts, and Public Administration	p. 301
Judicial Supervision of Public Administration	p. 305
Administrative Values and Constitutional Democracy	p. 308
Assessing the Impact of Judicial Supervision on Public Administration	p. 310
The Next Steps: Public Service Education and Training in Law	p. 314
References	p. 315
Cases	p. 315
Articles, and Books	p. 315
Index	p. 319
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