Public Administration and Law, Third Edition / Edition 3

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Overview

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.

The book begins by presenting a historical account of the way constitutional and administrative law have incrementally "retrofitted" public agencies into the nation's constitutional design. It examines the federal judiciary's impact on federal administration and the effect of the nation's myriad environmental laws on public administration. Next, it focuses on the role of the individual as a client and customer of public agencies. In a discussion of the Fourth Amendment, it examines street-level encounters between citizens and law enforcement agents. Responding to the rise of the new public management (NPM), it also adds, for the first time in this edition, a chapter that analyzes the rights of the individual not only as a government employee but also as a government contractor.

The final chapters of the book address issues concerning the rights of inmates in administrative institutions and balancing the need to protect individual rights with the ability of agencies to function effectively. Supplemented with case citations and lists of articles, books, and documents, this text is designed to facilitate further study in a constantly evolving area.

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Product Details

  • ISBN-13: 9781439803981
  • Publisher: Taylor & Francis
  • Publication date: 6/23/2010
  • Series: Public Administration and Public Policy Series , #157
  • Edition description: New Edition
  • Edition number: 3
  • Pages: 353
  • Product dimensions: 6.20 (w) x 9.40 (h) x 1.00 (d)

Meet the Author

David H. Rosenbloom, Ph.D. is Distinguished Professor of Public Administration in the School of Public Affairs at American University in Washington, D.C., and Chair Professor of Public Management at City University of Hong Kong. Rosemary O’Leary, Ph.D., J.D. is Distinguished Professor of Public Administration and the Howard G. and S. Louise Phanstiel Chair in Strategic Management and Leadership at Syracuse University. Joshua M. Chanin, M.P.A., J.D. is a Ph.D. candidate in Public Administration and Justice, Law, and Society in the School of Public Affairs at American University in Washington, D.C.

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Table of Contents

Preface

Acknowledgments

About the Authors

SECTION I THE ADMINISTRATIVE STATE, DEMOCRATIC CONSTITUTIONALISM, AND THE RULE OF LAW

1 The Problem: Retrofitting the American Administrative State into the Constitutional Scheme 3

1.1 Public Administration and American Constitutionalism 4

1.2 The American Public Administrative "Orthodoxy" 5

1.3 "Reinvented" Public Administration: Toward a New Public Management 8

1.4 U.S. Constitutionalism 11

1.4.1 Efficiency 12

1.4.2 Who's in Charge of Public Administration? 13

1.4.3 Consolidation of Functions 18

1.4.4 Instrumentalism and Utilitarianism versus Contractarianism 19

1.4.4.1 Spending 19

1.4.4.2 Collective Action 20

1.4.4.3 Contractarianism 22

1.4.5 Regulation versus Liberty and Property Rights 24

1.4.6 Legitimacy 27

1.5 Controlling Administrative Discretion: The Role of Law 31

1.6 Judicial Responses to the Administrative State 35

1.6.1 Judicial Opposition to the Administrative State (1890s-1936) 36

1.6.2 Judicial Acquiescence in the Administrative State (1937-Early 1950s) 39

1.6.3 Constitutionalization and Partnership: The 1950s Forward 41

1.7 Conclusion: Retrofitting as an Incremental Project 43

References 44

Cases 44

Articles, Books, and Documents 46

2 Administrative Law and the Judiciary Today 51

2.1 The Commerce Clause 52

2.2 Delegated Power 55

2.3 The Federal Government's Administrative Law Framework 57

2.4 Judicial Review of Agency Action 62

2.4.1 Statutory Interpretation 63

2.4.2 Substantial Evidence Review of Facts 65

2.4.3 Abuse of Discretion Review 66

2.4.4 Remand 66

2.4.5 Review of Rules and Regulations 67

2.5 Review of Informational Activity 67

2.5.1 Administrative Searches 67

2.5.2 Freedom of Information 68

2.5.3 Privacy Act 69

2.5.4 Open Meetings 69

2.5.5 Federal Advisory Committee Act 70

2.6 Adjudications 71

2.6.1 Notice 71

2.6.2 Intervention 71

2.6.3 Procedures 72

2.6.4 Expertise 72

2.7 Rulemaking 73

2.8 Review of Executive Orders 75

2.9 Alternatives to Litigation 76

2.9.1 Ombuds 77

2.10 Regulatory Negotiation 78

2.11 Conclusion 79

References 80

Cases 80

Articles, Books, and Documents 81

3 Environmental Law: Changing Public Administration Practices 85

3.1 Judicial Review of Agency Actions 86

3.1.1 Standing to Sue: The Case of Global Warming 87

3.1.2 Ripeness and Standard of Review: The Case of Timber Cutting 90

3.1.3 Standard of Review: The Case of Air Quality 92

3.2 Interpretation of Environmental Laws 93

3.2.1 Interpreting Statutes: Two Cases Concerning the Endangered Species Act 94

3.2.2 Interpreting Statutes and the Constitution: Regulatory Takings and Land Use 97

3.2.3 Choice of Remedy 100

3.3 The Growth of Environmental Conflict Resolution 102

3.3.1 ECR Processes 105

3.3.2 Consensus-Based Processes 105

3.3.2.1 Conflict Assessment (Convening) 106

3.3.2.2 Facilitation 106

3.3.2.3 Mediation 106

3.3.2.4 Conciliation 107

3.3.2.5 Negotiated Rulemaking 107

3.3.2.6 Policy Dialogues 107

3.3.2.7 Quasi-Adjudicatory Processes 108

3.3.2.8 Early Neutral Evaluation 108

3.3.2.9 Minitrials and Summary Jury Trials 109

3.3.2.10 Settlement Judges 109

3.3.2.11 Fact-Finding 109

3.3.2.12 Arbitration 110

3.4 Conclusion 110

References 111

Cases 111

Articles, Books, and Documents 112

SECTION II THE CONSTITUTIONALIZATION OF PUBLIC ADMINISTRATIVE ACTION

4 The Individual as Client and Customer of Public Agencies 115

4.1 The Public Administration of Services 116

4.1.1 Traditional Public Administration 116

4.1.2 The New Public Management and Reinventing Government Movements 120

4.2 Constraining Clients: The Problem of Conditional Benefits 121

4.3 Clients and Customers in Court: The Traditional Response 124

4.4 The Demise of the Doctrine of Privilege 127

4.4.1 Redefining Equal Protection 128

4.4.1.1 Equal Protection Today 130

4.4.2 Unconstitutional Conditions: Protecting Clients' and Customers' Substantive Rights 133

4.4.3 The "New Property": Expanding Clients' and Customers' Rights to Procedural Due Process 137

4.5 A Constitutional Limit to Clients' and Customers' Interests in Public Benefits 142

4.6 The Case Law in Sum 143

4.7 Impact on Public Administration 144

References 147

Cases 147

Articles, Books, and Documents 148

5 Street-Level Encounters 151

5.1 The Need for Street-Level Intuition versus the Fear of Arbitrary or Discriminatory Administration and Law Enforcement 155

5.2 The Fourth Amendment 158

5.2.1 Inspectors 159

5.2.2 Trash Inspections 161

5.2.3 Inventory Searches 162

5.2.4 Requests for Identification 165

5.2.5 Sweep Searches 168

5.2.6 Random Stops 169

5.2.7 Highway and Transportation Checkpoints 170

5.2.8 Border Searches 173

5.2.9 Drug Testing 173

5.3 Impact on Public Administration 175

References 176

Cases 176

Articles and Books 177

6 The Individual as Government Employee or Contractor 179

6.1 Public Administrative Values and Public Employment 180

6.2 Constitutional Values in Public Employment 184

6.3 Considering Whether the Constitution Should Apply to Public Employment 185

6.4 Judicial Doctrines 189

6.4.1 The Doctrine of Privilege and Government Employment 189

6.4.2 Bailey v. Richardson: The Transformational Case 191

6.4.3 Finding a New Approach: The Emergence of the Public Service Model 193

6.5 The Structure of Public Employees' Constitutional Rights Today 196

6.5.1 Substantive Rights 196

6.5.1.1 Speech on Matters of Public Concern 196

6.5.1.2 "Work Product" Speech 198

6.5.1.3 Partisan Speech and Activity 199

6.5.1.4 Freedom of Association 200

6.5.2 Protection against Unreasonable Searches and Seizures 202

6.5.3 Procedural Due Process 203

6.5.4 Equal Protection 205

6.5.5 Substantive Due Process 206

6.5.6 Enforcing Public Employees' Constitutional Rights 206

6.6 Government Contractors 207

6.7 Conclusion: The Courts, Public Personnel Management, and Contracting 212

References 214

Cases 214

Articles, Books, and Documents 216

7 The Individual as Inmate in Administrative Institutions 219

7.1 Administrative Values and Practices 220

7.2 Total Institutions and Public Administrative Values 221

7.3 Theory and Practice in Public Total Institutions Prior to Reform in the 1970s 227

7.3.1 Mental Health Facilities 227

7.3.1.1 Conditions on the Ground 230

7.3.2 Prisons 231

7.3.2.1 Conditions on the Ground 233

7.4 Transformational Cases 238

7.4.1 Wyatt v. Stickney (1971): A Fourteenth Amendment Right to Treatment 238

7.4.2 Holt v. Sarver (1970): Redefining Cruel and Unusual Punishment 241

7.5 Subsequent Developments: The Right to Treatment and Prisoners' Rights Today 242

7.5.1 The Right to Treatment 242

7.5.2 The Eighth Amendment: Conditions of Confinement 246

7.5.2.1 Prison Administrators' Personal Liability under the Eighth Amendment 248

7.5.2.2 Prisoners' Additional Constitutional Rights 252

7.6 Implementation and Impact 254

7.6.1 Public Mental Health Administration 255

7.6.2 Prisons and Jails 257

7.7 Conclusion: Consequences for Public Administrators 259

7.7.1 Integrating Constitutional Values, Law, and Day-to-Day Administrative Operations 260

7.7.2 From Few Actors to Many 260

7.7.3 Budget Pressures 261

References 262

Cases 262

Articles, Books, and Documents 264

8 The Individual as Antagonist of the Administrative State 267

8.1 The Antagonist of the Administrative State 268

8.2 The Antagonist in Court: Traditional Approaches 270

8.3 Public Administrators' Liability and Immunity 271

8.3.1 The Civil Rights Act of 1871 272

8.3.2 Absolute Immunity 275

8.3.3 Qualified Immunity 278

8.4 Suing States and Their Employees 287

8.5 Failure to Train or to Warn 287

8.6 Public Law Litigation and Remedial Law 288

8.6.1 The Supreme Court and Remedial Law 291

8.7 Standing 292

8.8 State Action Doctrine, Outsourcing, and Private Entities' Liability for Constitutional Torts 294

8.9 Conclusion 297

References 298

Cases 298

Articles and Books 300

9 Law, Courts, and Public Administration 301

9.1 Judicial Supervision of Public Administration 305

9.2 Administrative Values and Constitutional Democracy 308

9.3 Assessing the Impact of Judicial Supervision on Public Administration 310

9.4 The Next Steps: Public Service Education and Training in Law 314

References 315

Cases 315

Articles and Books 315

Index 319

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