Eight supreme court cases that have changed the face of public administration

This article examines eight recent Supreme Court decisions that have important implications for public administrators. The areas examined include public personnel policy, solid waste management, budgeting and finance, taxation, privacy, and public school education.     

Public needs vs. private loss: land use regulation and property rights

Property rights and government regulation have been the subject of considerable discussion and controversy in recent years. The issue of “takings” has been raised in most of the state legislatures in the 1990s. Congress has considered legislation as well. Supreme Court decisions, in particular the Lucas and the Dolan cases, have focused judicial attention on the issue in recent years. Local elected officials, planners and local government administrators confront the issue increasingly as they attempt to respond to growth pressures and regulate land use. Unfortunately, a great deal the public's perception of property rights is myth or fable. This article addresses the issue of takings by putting it first into historical perspective. Thus, we see that regulation of private property by government is not new. The concern over “regulatory takings” is explored and traced briefly noting the entry of the federal government into the arena of land use regulation. Legislative responses are reviewed and finally the status of judicial consideration of the issue is brought up to date. The article closes with recommendations for those who confront the takings issue. While caution is indeed called for, regulation of private property is still a fact of life in American public administration and will be for some time to come.     

Authoritarian constitutionalism in Putin's Russia: A pragmatic constitutional court in a dual state

This article analyzes the successful adaptation of the Russian Constitutional Court (RCC) to an increasingly authoritarian regime under President Vladimir Putin. It argues that the key to its success lay in its pragmatic approach, whereby the Court decides cases that matter to the regime in a politically expedient way, while giving priority to legal and constitutional considerations in other cases, thereby recognizing the reality of a dual state. Over the years the RCC has taken a pragmatic approach in its reaction to changes in the rules of its operations, in its personnel, and in the policies of the popular political leader, including reducing the country's subordination of European legal norms. In so doing, the Court and its skillful chairman Valerii Zorkin achieved considerable autonomy in pursuing its own legal vision on many issues and even improved the implementation of its decisions by other judges and political bodies alike (previously a big problem). In short, the RCC developed its own version of “authoritarian constitutionalism”, which may serve as a model for constitutional judicial bodies in other authoritarian states.     

The changing nature of urban affirmative action programs: the search for race-neutral alternatives

In January, 1989, the U.S. Supreme Court cast in doubt the legality of minority set-aside programs. The Court required government set-aside programs to meet a “strict-scrutiny” standard of review and required cities to first explore race-neutral means for increasing minority firm participation prior to utilizing any type of rigid quota system. This paper examines how four cities have reacted quite differently, with some cities continuing old practices, and others developing a mixture of new policies and implementation structures. It is argued that the Supreme Court's decision will have only a minor impact on minority contracting programs, with cities seeking to combine affirmative action contracting programs with those that stress economic development.     

JUDICIAL REVIEW: A WAY OF CONTROLLING GOVERNMENT?

Recent concern among administrators about the effect of judicial review on their work is exaggerated. The cases show that judges are aware of the pitfalls of too much judicial intervention. Judges do not control government. To understand their role, we must distinguish three different judicial techniques (here called directing, limiting and structuring) which are usually conflated under the title of 'control'. In doing their jobs, judges generate principles to guide administrative procedures and judge their legality. That can make a useful contribution to structuring administrative decision-making, but only if the civil service is as sensitive to the potential value of judicial review as judges are to its possible dangers.     

Affirmative action: A status report

Affirmative Action, largely dependent as it is upon Executive Orders and judge-made law, has been rather tenuous from time to time. It came under severe stress during the Reagan Administration. Yet, the 1986-89 Supreme Court decisions show that while no revolutionary strides were made, the “core principle” itself was reaffirmed. Consequently, there appear to be some salutary effects insofar as one sees some reversals of other agency postures. Thus, one can say that Affirmative Action survived after having withstood the most relentless assault so far. However, during the 1989 term, the Court opened up issues long settled thus casting a shadow on the prospects of AA. The imponderable is the future composition of the Supreme Court along with the opportunity accorded to President George Bush.     

Joined-up government and privacy in the United Kingdom: managing tensions between data protection and social policy. Part II

The tension between the goals of integrated, seamless public services, requiring more extensive data sharing, and of privacy protection, now represents a major challenge for UK policy‐makers, regulators and service managers. In Part I of this article (see Public Administration volume 83, number 1, pp. 111–33), we showed that attempts to manage this tension are being made at two levels. First, a settlement is being attempted at the level of general data protection law and the rules that govern data‐sharing practices across the public sector. We refer to this as the horizontal dimension of the governance of data sharing and privacy. Secondly, settlements are also being attempted within particular fields of public policy and service delivery; this we refer to as the vertical dimension. In this second part, we enquire whether risks to privacy are greater in some policy sectors than others. We do this, first by showing how the Labour Government's policy agenda is producing stronger imperatives towards data sharing than was the case under previous administrations in three fields of public policy and services, and by examining the safeguards introduced in these fields. We then compare the settlements emerging from differing practices within each of these policy sectors, before briefly assessing which, if any, principles of data protection seem to be most at risk and in which policy contexts. Four strategies for the governance of data sharing and privacy are recapitulated – namely, seeking to make the two commitments consistent or even mutually reinforcing; mitigating the tensions with safeguards such as detailed guidelines; allowing privacy to take precedence over integration; and allowing data sharing to take precedence over privacy. We argue that the UK government has increasingly sought to pursue the second strategy and that the vertical dimension is, in practice, much more important in defining the settlement between data sharing and privacy than is the horizontal dimension. This strategy is, however, potentially unstable and may not be sustainable. The conclusion proposes a radical recasting of the way in which the idea of a ‘balance’ between privacy and data‐sharing imperatives is conceived.     

Public administration,executive power,and constitutional confusion

This article examines the ambiguity in the meaning of executive power in both the text of the U.S. Constitution and in subsequent judicial interpretations. This ambiguity has had a profound impact on the constitutional position of the public administration. In the recent independent counsel case, the U.S. Supreme Court offered a restrictive interpretation of the President's constitutional powers to remove subordinate officers. This new interpretation could lead to increased congressional control over administrative agencies.

The proper place and function of the public administration, unfortunately for the public administration, have been and remain inherently ambiguous because of the longstanding confusion about executive power in the Constitution of the United States. Richard Neustadt captured this ambiguity nicely when he noted that the two great themes that have characterized the American presidency have been “clerkship” and “leadership.”⁽¹⁾ There is no easy formula to bring clerks and leaders together to make them march in lock-step, and yet the President is clearly both. Today we may tend to emphasize his role as leader with imperial pretensions and Nixonian excesses still relatively fresh in our memories, but this is only a question of emphasis. No one denies that the President is a legally accountable officer who must do the bidding of the Congress. This is the clerkship side of the presidency.

Herbert Storing counsels against any effort to cut the Gordian knot and to try to determine once and for all just what it is our President is supposed to be: clerk or leader. “The beginning of wisdom about the American presidency,” Storing maintains, “is to see that it contains both principles and to reflect on their complex and subtle relation.”⁽²⁾ Following Storing's advice, this essay reflects on the inherent ambiguity of the executive power that provides the constitutional foundation of the public administration. First, we examine the text of the Constitution and the meaning of executive power at the time of the founding. Then we study the confusion that the Supreme Court has created in its efforts to draw practical conclusions for presidential personnel management from the constitutional grant of “the executive power” to the President in relation to the removal power. Third, we examine some of the recent problems of executive power that surfaced in Watergate and became salient in the important constitutional debate over the special prosecutors, those most unwelcome intruders into the inner precincts of the Reagan administration.     

Joined-up government and privacy in the United Kingdom: managing tensions between data protection and social policy. Part I

The Labour government that came to power in the United Kingdom in 1997 made much of its commitment to ‘joined‐up working’, by which it meant horizontal integration between policies and co‐ordination across services. The particular manner in which it pursued this commitment has led to growing pressure for the sharing of citizens’ personal information among public service agencies. Yet at the same time, Parliament was engaged in implementing the European Data Protection Directive with a new Data Protection Act and the Government was honouring its manifesto commitment to bring the European Convention on Human Rights – including its enshrined right to private life – into domestic law. Government has therefore been obliged to find ways of managing the potential tension between these commitments. There are two analytically distinct dimensions to the arrangements through which this is being attempted. First, the horizontal dimension consists in initiatives that apply across all policy fields, and includes the establishment of cross‐governmental guidelines for implementing data protection law as well as the development of national policy on sharing personal data between public services. In 2002, the government published a major policy paper on data sharing and privacy. By late 2003, its approach to the need for legislation had changed sharply. The second analytically distinct dimension, the vertical dimension, consists in the laws, codes and norms developed in specific policy fields to govern relationships between data sharing and privacy within those fields. This two‐part article discusses these arrangements. Part I analyses the horizontal dimension of the governance of data sharing and privacy. Part II (published in the next issue) examines the vertical dimension in three fields in which tensions between data sharing and privacy have come to the fore: community safety, social security and NHS health care. Four options for the governance of data sharing and privacy are analytically distinguished: (1) seeking to make the two commitments consistent or even mutually reinforcing; (2) mitigating the tensions with detailed guidelines for implementation; (3) allowing data sharing to take precedence over privacy; and (4) allowing privacy to take precedence over data sharing. The article argues that, despite its strong assertion of (1), the government has, in practice, increasingly sought to pursue option (2) and that, in consequence, the vertical dimension has become much more important in shaping the relationship than the horizontal dimension. The articles argue, however, that option (2) is a potentially unstable strategy as well as being unsustainable.     

The significance of ethnicity in the Estonian return migration policy of the early 1920s

In this article the Estonian return migration policy is analyzed from the perspective of the return migrants' ethnicity. The time period of this study covers the most intensive phase of the state-organized return of emigrants to the newly established Republic of Estonia. The survey of attitudes of the Estonian authorities towards the return of emigrants with different ethnic backgrounds leads to the conclusions that the return of ethnic Estonians was preferred to the return of non-Estonians during the first years of Estonia's independence on both economic and political grounds. The political loyalty of non-Estonians was doubted in the administrative circles of Estonia which was especially the case with regard to the emigrants that had formerly belonged to the ruling power elites. The negative attitudes towards the return of non-Estonians were further aggravated by the crisis the Estonian economy was facing at that time. As a result, a parallel with the return migration policies of other new nation-states that emerged from the ruins of the Russian empire can be drawn.     

Advocacy coalitions,beliefs and climate change policy in the United States

The Advocacy Coalition Framework (ACF) asserts that disagreement over policy core beliefs divides organizations into competing coalitions. We apply Discourse Network Analysis to 1,410 statements in the Wall Street Journal, New York Times and USA Today to investigate what kinds of beliefs contribute to coalition formation in the climate change policy debate in the news media in the United States. We find that the beliefs concerning the reality of anthropogenic climate change, the importance of ecology over economy and desirability of governmental regulation divide organizations into three advocacy coalitions: the economy, ecology and science coalitions. Policy preferences such as cap and trade do not; they find support across coalition lines. Based on these findings, we suggest that ACF theory could be clarified to better account for how beliefs concerning policy instruments contribute to coalition formation. In some policy domains, policy instruments are where opposing coalitions find agreement. In others, they are more divisive.     

PUBLIC LAW

Traditionally, both the academic study and the practice of UK public administration have drawn very little inspiration from the discipline of public law. In contrast to most other European countries, in which public services are subject to extensive administrative-legal codes, and in which administrative disputes fall under the jurisdiction of separate and specialized administrative courts, UK administrative law remains – recent reforms notwithstanding – significantly undeveloped. There is a marked contrast also with the United States, where the founding scholars of the discipline of public administration saw it as being firmly rooted in public law. There is no codified British constitution and no counterpart of the US Supreme Court; and there is no British counterpart of the US Administrative Procedure Act 1946. However, there are three factors which underline the urgent need in the UK for greater collaboration and convergence between the disciplines of public law and public administration: first, the accumulation in recent years of a substantial body of research-based, academic literature on public law, which provides important insights into the changing landscape of UK public administration; secondly, the continuing development of machinery for the redress of citizens’grievances against the state – in particular, the substantial growth of judicial review proceedings and the development of ombudsman systems; thirdly, the continuing transformation of the agenda of UK law and politics by developments in the European Union.     

Love and let die

When the very technology that can save lives is only prolonging death, how should a patient decide whether to stop treatment--or help death along? In the last days of a ravaging disease, patients and their families face all but unbearable decisions. Is there a right to die? To commit suicide? To be killed on request? As the private dilemmas multiply, they have become the public province of interest groups, policymakers and the U.S. Supreme Court.     

Federal set-asides policy and minority business contracting: understanding the adarand decision

In Adarand Constructors v. Pena ⁽¹⁾, the Supreme Court ruled that federal affirmative action preference programs must undergo the “strict scrutiny” standard. A program subject to strict scrutiny is one that cannot pass muster under the Constitution's “equal protection” mandate unless there is a “compelling government interest” in its objectives and the program is “narrowly tailored” to meet the objectives. This paper reviews the Adarand decision and discusses the implications of the decision for minority business federal contracting.     

Language,nation and citizenship: contrast,conflict and convergence in Estonia's debate with the international community

This paper investigates the clash of (language) ideologies in Estonia in the post-Communist period. In an analysis of changing Western recommendations and Estonian responses during the transition of Estonia from Soviet Socialist Republic to independent state, we trace the development of the discourses on language and citizenship rights. Different conceptions of the nation-state and of how citizenship is acquired, together with different approaches to human rights, led to disagreement between Estonian political elites and the political actors attached to international institutions. In particular, the Soviet demographic legacy posed problems.

We use a context-sensitive approach that takes account of human agency, political intervention, power, and authority in the formation of (national) language ideologies and policies. We find that the complexities of cultural and contextual differences were often ignored and misunderstood by both parties and that in their exchanges the two sides appeared to subscribe to ideal philosophical positions. In the following two decades both sides repositioned themselves and appeared to accommodate to the opposing view. In deconstructing the role of political intervention pressing for social and political inclusion and in documenting the profound feeling of victimhood that remained as a legacy from the Soviet period and the bargain that was struck, we hope to contribute to a deeper understanding of the language ideological debates surrounding the post-Communist nation-(re)building process.     

台湾地区智慧财产法院特色机制及其运行评述

台湾地区智慧财产法院的设立，最大程度地实现了知识产权案件的集中审判，审判效率获得极大提升。采用法官与技术审查官相结合模式，设置技术审查官辅助法官判案，有效解决法官技术知识不足问题。引入法院审理侵权诉讼可自行判断知识产权有效性制度，并协调各案间知识产权有效性判断的冲突，彰显案件审判之效率。     

Public contracting,policy preferences and minority business enterprises

About three years ago a Special Issue of the International Journal of Public Administration focused on the topic “Government Set-Asides, Minority Business Development, and Publi Contracting.”^(l) Much of the discussion in the issue addressed race conscious government set-aside programs in the aftermath of the U.S. Supreme Court decision in City of Richmond v. J. A. Croson Co. ⁽²⁾ The decision declared unconstitutional a local government minority business set-aside provision designed to help minority business enterprises (MBEs) obtain government contracts. At the time, the decision was applicable only to state and local governmental jurisdictions.⁽³⁾ Government set-asides involve the practice of providing minority contractors and subcontracting a certain percentage of a public jurisdiction's contract dollars.

In 1995 the Supreme Court in Adarand v. Pena ⁽⁴⁾ extended the Croson ruling to include set-aside programs in federal agencies. This Special Issues examines and discusses the Adarand decision and the developments that have followed. The first article by Mitchell F. Rice, “Federal Set-Asides Policy and Minority Business Contracting: Understanding the Adarand Decision,” reviews the Adarand decision and discusses the implications of the decision for minority business development. The next article by Audrey L. Mathews and Mitchell F. Rice, “Adarand v. Pena: Turning Challenges Into Opportunities,” uses a case study of two public preference programs to suggest how Adarand requirements may be successfully utilized to maintain set-aside preference programs.

The third article by Shelton Rhodes, “Mirmative Action Review ‘Report’ to the Presidents: Implications of Military Affirmative Actions Programs to Current and New Millennium Affirmative Action Programs,” reviews the Affirmative Action Review: Report to the President which was ordered by President Clinton soon after the Adarand decision. Rhodes considers the implications of the possible applicability of the successes of affirmative action and equal opportunity in the military, which is highlighted in the Report, to other public and private organizations. The final article by Wilbur C., Rich, “Presidents and Minority Set-Aside Policy: Race, Gender and Small Opportunities,” analyzes the impact of presidential leadership on minority set-asides policy and shows how politicians use set-asides to facilitate exchanges and cooperation with the business elites.     

THE LISBON AGENDA AND ENTREPRENEURSHIP POLICY: GOVERNANCE IMPLICATIONS FROM A GERMAN PERSPECTIVE

With the Lisbon Strategy and mandate, the European Commission committed itself to promoting entrepreneurship as a major driver of innovation, competitiveness, and growth. This paper demonstrates that the renaissance of entrepreneurship policy along with the implementation of the Lisbon Agenda resulted in the localization of policy‐making, and re‐strengthened policy‐makers on the ground to successfully mobilize directly at the supranational level. Furthermore, it shows that EU entrepreneurship policy‐making has contributed to a shift from hierarchical government to a more horizontal and interactive form of governance in the new German Laender which were highly exposed to Structural Funds and the Lisbon Agenda. The focus of analysis on the sub‐national level helps to fill an academic void in Europeanization and governance literature. By integrating a region‐ and policy‐specific perspective, this contribution goes beyond theorizing the regional dimension of Europeanization in a multi‐level governance scheme.     

ISRAEL'S AUDITOR AS POLICY-MAKER

Supreme audit institutions claim to avoid directly criticizing government policy. However, their assertions do not reflect reality. Israel's State Comptroller is explicit in criticizing government policy, and suggesting other policies in their place. The US General Accounting Office, the UK National Audit Office, and the Philippines Commission on Audit also criticize policy, but with styles that are more subtle and indirect than the Israeli auditor's. A review of the responses to Israel's audit reports reveals the extent of policy influence and the constraints that limit the auditor's role as a policy-maker.     

Reflexive Watchdogs? How Supreme Audit Institutions Account for Themselves

Supreme Audit Institutions (SAIs) such as the UK National Audit Office and the French Cour des Comptes play important roles within the institutional mechanisms of the democratic state. They are given high independence in order to secure public accountability for, first, the probity and legality of public spending and, second, economy, efficiency and effectiveness. During the last twenty years several SAIs’ mandates have been adjusted to reflect the latter, more managerialist, concerns. This article asks two questions: first, what evidence do these SAIs offer as to the quality and effectiveness of their activities in carrying out their mandates and, second, to what extent does their self–reporting appear to have been influenced by the precepts of the ‘New Public Management’ (NPM)? To address these questions an analysis is carried out of the annual reports and other relevant documents of the Finnish, Swedish, French and UK SAIs, and of the European Court of Auditors. The analysis shows considerable differences of approach. These may well be related to the differing constitutional positions and administrative cultures of the SAIs concerned. In conclusion we identify different concerns which are associated with either a fervent embracing of NPM criteria by SAIs or, alternatively, with an apparent rejection of those approaches.