Administrative Litigation in the United States from the Standpoint of the Right of Democratic Contestation

다국어 초록 (Multilingual Abstract)

This article connects the theoretical aspects of the republican-based concept of the right of democratic contestation, particularly as articulated by Philip Pettit and Mattias Kumm, with the real world of administrative litigation. After distilling key theoretical elements of the relevant theories from republican theory, this article proceeds to define them as “Implementing Criteria,” namely Access, Judicial Independence, Procedural Fairness, and Adequacy of Remedies. Then the article explains how the Implementing Criteria are utilized as bases to determine whether the right of democratic contestation is properly implemented in a particular administrative litigation context.
After explaining each of the Implementing Criteria generally, this article then looks at how the administrative litigation system of the United States matches up with such criteria. While strengths and weaknesses in the American systems are identified, special emphasis is placed on key weaknesses - areas that conflict with the proper implementation of the right of democratic contestation. For example, the Chevron doctrine is a key weakness of the American administrative litigation system since it impermissibly stacks the odds against claimants and undermines fundamental notions of fair play necessary to properly check the oppressive behavior of the administrative state. Other strengths and weaknesses are also highlighted and recommendations to correct weaknesses are made.