正当程序、言论自由和行政国家

IF 1 3区 社会学 Q2 LAW Notre Dame Law Review Pub Date : 2018-02-12 DOI:10.2139/SSRN.3122697
Martin H. Redish, K. McCall
{"title":"正当程序、言论自由和行政国家","authors":"Martin H. Redish, K. McCall","doi":"10.2139/SSRN.3122697","DOIUrl":null,"url":null,"abstract":"The Supreme Court has long imposed on the judiciary a due process requirement of neutrality. Any temptation to the reasonable judge to decide a case other than on its merits is deemed unconstitutional, even in the absence of any showing of actual bias. The Court has been wisely willing to risk over-enforcement of the neutral adjudicator requirement, rather than under-enforcement. In the administrative context, however, the Court has imposed the exact opposite presumption: that absent a clear showing of bias, administrative adjudicators will be assumed to satisfy due process, even though they are part of the very agency instituting the adversary proceeding and will often have played a direct role in the institution of the proceeding. This Article argues that because of their built-in connections to the interests of the agencies for which they work, administrators should be deemed at least as inherently suspect, for due process purposes, as are judges. As in judicial proceedings, property or other constitutional rights may well be at stake, and due process protections are triggered equally in both contexts. The Article acknowledges the practical reality that many will consider it simply too late in the day to force so sweeping revisions in the administrative process, despite the serious constitutional problems it raises. Therefore as a second line of attack, the Article argues that a categorical exception be made to the blanket assumption of administrative adjudicatory neutrality for those cases challenging the constitutionality of agency action. In such situations, the administrators’ connection to their own agencies renders them inherently ill-equipped to neutrally adjudicate such challenges. This is particularly so, the Article argues, when First Amendment rights of free expression are implicated. Because of their simultaneous importance and fragility, the Article argues that plausible claims that proposed agency adjudicatory action will contravene a regulated party’s First Amendment rights should be allowed to reach the courts prior to the conduct of the administrative proceeding.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":1.0000,"publicationDate":"2018-02-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"1","resultStr":"{\"title\":\"Due Process, Free Expression, and the Administrative State\",\"authors\":\"Martin H. Redish, K. McCall\",\"doi\":\"10.2139/SSRN.3122697\",\"DOIUrl\":null,\"url\":null,\"abstract\":\"The Supreme Court has long imposed on the judiciary a due process requirement of neutrality. Any temptation to the reasonable judge to decide a case other than on its merits is deemed unconstitutional, even in the absence of any showing of actual bias. The Court has been wisely willing to risk over-enforcement of the neutral adjudicator requirement, rather than under-enforcement. In the administrative context, however, the Court has imposed the exact opposite presumption: that absent a clear showing of bias, administrative adjudicators will be assumed to satisfy due process, even though they are part of the very agency instituting the adversary proceeding and will often have played a direct role in the institution of the proceeding. This Article argues that because of their built-in connections to the interests of the agencies for which they work, administrators should be deemed at least as inherently suspect, for due process purposes, as are judges. As in judicial proceedings, property or other constitutional rights may well be at stake, and due process protections are triggered equally in both contexts. The Article acknowledges the practical reality that many will consider it simply too late in the day to force so sweeping revisions in the administrative process, despite the serious constitutional problems it raises. Therefore as a second line of attack, the Article argues that a categorical exception be made to the blanket assumption of administrative adjudicatory neutrality for those cases challenging the constitutionality of agency action. In such situations, the administrators’ connection to their own agencies renders them inherently ill-equipped to neutrally adjudicate such challenges. This is particularly so, the Article argues, when First Amendment rights of free expression are implicated. Because of their simultaneous importance and fragility, the Article argues that plausible claims that proposed agency adjudicatory action will contravene a regulated party’s First Amendment rights should be allowed to reach the courts prior to the conduct of the administrative proceeding.\",\"PeriodicalId\":47176,\"journal\":{\"name\":\"Notre Dame Law Review\",\"volume\":null,\"pages\":null},\"PeriodicalIF\":1.0000,\"publicationDate\":\"2018-02-12\",\"publicationTypes\":\"Journal Article\",\"fieldsOfStudy\":null,\"isOpenAccess\":false,\"openAccessPdf\":\"\",\"citationCount\":\"1\",\"resultStr\":null,\"platform\":\"Semanticscholar\",\"paperid\":null,\"PeriodicalName\":\"Notre Dame Law Review\",\"FirstCategoryId\":\"90\",\"ListUrlMain\":\"https://doi.org/10.2139/SSRN.3122697\",\"RegionNum\":3,\"RegionCategory\":\"社会学\",\"ArticlePicture\":[],\"TitleCN\":null,\"AbstractTextCN\":null,\"PMCID\":null,\"EPubDate\":\"\",\"PubModel\":\"\",\"JCR\":\"Q2\",\"JCRName\":\"LAW\",\"Score\":null,\"Total\":0}","platform":"Semanticscholar","paperid":null,"PeriodicalName":"Notre Dame Law Review","FirstCategoryId":"90","ListUrlMain":"https://doi.org/10.2139/SSRN.3122697","RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q2","JCRName":"LAW","Score":null,"Total":0}
引用次数: 1

摘要

长期以来,最高法院一直对司法机构施加中立的正当程序要求。即使没有显示出实际的偏见,任何诱使理性的法官在案情之外作出裁决的行为都被视为违宪。法院明智地愿意冒险过度执行中立审查员的要求,而不是执行不足。然而,在行政方面,法院作出了完全相反的假设:如果没有明显的偏见表现,就假定行政裁决人员符合正当程序,即使他们是提起对抗性诉讼的机构的一部分,并且经常在诉讼制度中发挥直接作用。本文认为,由于他们与他们所服务的机构的利益有着内在的联系,出于正当程序的目的,行政人员至少应该被视为天生的嫌疑人,就像法官一样。正如在司法程序中一样,财产或其他宪法权利很可能受到威胁,在这两种情况下,正当程序保护同样受到触发。该条款承认了一个现实,即许多人会认为,尽管它引发了严重的宪法问题,但现在强制对行政程序进行如此全面的修改已经太晚了。因此,作为第二条攻击线,该条认为,对于那些挑战机构行为合宪性的案件,应对行政裁决中立的总体假设作出绝对例外。在这种情况下,管理人员与他们自己的机构的联系使他们天生就不具备中立裁决此类挑战的能力。该条认为,当涉及到第一修正案的言论自由权时,情况尤其如此。由于其同时的重要性和脆弱性,该条认为,提议的机构裁决行动将违反被监管方的第一修正案权利的合理主张应允许在行政诉讼进行之前到达法院。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
查看原文
分享 分享
微信好友 朋友圈 QQ好友 复制链接
本刊更多论文
Due Process, Free Expression, and the Administrative State
The Supreme Court has long imposed on the judiciary a due process requirement of neutrality. Any temptation to the reasonable judge to decide a case other than on its merits is deemed unconstitutional, even in the absence of any showing of actual bias. The Court has been wisely willing to risk over-enforcement of the neutral adjudicator requirement, rather than under-enforcement. In the administrative context, however, the Court has imposed the exact opposite presumption: that absent a clear showing of bias, administrative adjudicators will be assumed to satisfy due process, even though they are part of the very agency instituting the adversary proceeding and will often have played a direct role in the institution of the proceeding. This Article argues that because of their built-in connections to the interests of the agencies for which they work, administrators should be deemed at least as inherently suspect, for due process purposes, as are judges. As in judicial proceedings, property or other constitutional rights may well be at stake, and due process protections are triggered equally in both contexts. The Article acknowledges the practical reality that many will consider it simply too late in the day to force so sweeping revisions in the administrative process, despite the serious constitutional problems it raises. Therefore as a second line of attack, the Article argues that a categorical exception be made to the blanket assumption of administrative adjudicatory neutrality for those cases challenging the constitutionality of agency action. In such situations, the administrators’ connection to their own agencies renders them inherently ill-equipped to neutrally adjudicate such challenges. This is particularly so, the Article argues, when First Amendment rights of free expression are implicated. Because of their simultaneous importance and fragility, the Article argues that plausible claims that proposed agency adjudicatory action will contravene a regulated party’s First Amendment rights should be allowed to reach the courts prior to the conduct of the administrative proceeding.
求助全文
通过发布文献求助,成功后即可免费获取论文全文。 去求助
来源期刊
CiteScore
1.20
自引率
11.10%
发文量
0
期刊介绍: In 1925, a group of eager and idealistic students founded the Notre Dame Lawyer. Its name was changed in 1982 to the Notre Dame Law Review, but all generations have remained committed to the original founders’ vision of a law review “synonymous with respect for law, and jealous of any unjust attacks upon it.” Today, the Law Review maintains its tradition of excellence, and its membership includes some of the most able and distinguished judges, professors, and practitioners in the country. Entirely student edited, the Law Review offers its members an invaluable occasion for training in precise analysis of legal problems and in clear and cogent presentation of legal issues.
期刊最新文献
Préface Does Docket Size Matter? Revisiting Empirical Accounts of the Supreme Court's Incredibly Shrinking Docket Prior Art in the District Court Acknowledgments The Juggler of Notre Dame and the Medievalizing of Modernity. Volume 6: War and Peace, Sex and Violence
×
引用
GB/T 7714-2015
复制
MLA
复制
APA
复制
导出至
BibTeX EndNote RefMan NoteFirst NoteExpress
×
×
提示
您的信息不完整,为了账户安全,请先补充。
现在去补充
×
提示
您因"违规操作"
具体请查看互助需知
我知道了
×
提示
现在去查看 取消
×
提示
确定
0
微信
客服QQ
Book学术公众号 扫码关注我们
反馈
×
意见反馈
请填写您的意见或建议
请填写您的手机或邮箱
已复制链接
已复制链接
快去分享给好友吧!
我知道了
×
扫码分享
扫码分享
Book学术官方微信
Book学术文献互助
Book学术文献互助群
群 号:481959085
Book学术
文献互助 智能选刊 最新文献 互助须知 联系我们:info@booksci.cn
Book学术提供免费学术资源搜索服务,方便国内外学者检索中英文文献。致力于提供最便捷和优质的服务体验。
Copyright © 2023 Book学术 All rights reserved.
ghs 京公网安备 11010802042870号 京ICP备2023020795号-1