Judicial Review of Systemic Administrative Injustice
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Authors
Schafer, Devan
Date
2024-04-02
Type
thesis
Language
eng
Keyword
Administrative law
Alternative Title
Abstract
I argue in this thesis for judicial intervention in cases of systemic administrative injustice. This phrase is meant to capture instances where systemic dysfunction or inequity within administrative institutions becomes determinative or obstructive of legal rights and interests. I provide four illustrative examples of systemic administrative injustice in Chapter 1.
A central claim here is that there are no legal remedies for systemic administrative injustice because there are no conceptual tools available to translate systemic dysfunction into any cognizable legal vocabulary. Administrative law has historically focused on reviewing individual decisions or discrete components of a regime, and legal theory more broadly tends to ignore the institutional dimension of law. This conceptual lacuna is reflected in administrative law’s doctrinal and remedial boundaries. Wider dysfunction is excluded because it cannot be addressed given our individualistic and non-institutional understanding of law and legal authority.
To remedy this shortcoming, I draw on the work of Lon Fuller to argue that the very institutional forms that the law takes can provide the type of evaluative framework that would allow for judicial oversight of systemic administrative injustice. Building on Fuller’s emphasis on legal institutions as purposive and constituted by moral principles, I argue that dysfunctional adjudicative regimes can be read as undermining the institutional purpose of adjudication or as a failure to properly instantiate the constitutive moral principles of adjudication. Systemic administrative injustice can therefore be read as a failure to maintain fidelity to the legislative intent as revealed by the choice of institutional form.
I then link Fuller’s understanding of institutional forms to the idea that tribunals have a “nature and function,” arguing that the way this concept functions doctrinally reveals that fairness review already rests on a purposive and normatively thick understanding of law’s institutional forms.
The thesis concludes with an exploration of the institutional weaknesses of the judiciary that weigh against judicial involvement in the broader administrative regime. I stress the need for a comparative institutional analysis, and end by suggesting that the “experimentalist” approach adopted by American courts overseeing structural reform provides a promising blueprint for judicial review of systemic administrative injustice.