Common Law and Statute Law in US Federal Administrative Law
ADMINISTRATIVE LAW IN A CHANGING STATE: ESSAYS IN HONOUR OF MARK ARONSON, Linda Pearson, Carol Harlow and Michael Taggart, (eds.), Hart Publishing, 2008
Posted: 11 Feb 2009
Date Written: February 10, 2009
By and large the law of judicial review in the United States appears to be statutory and it is understood that way by most lawyers in the U.S. Scratch below the surface, however, and the federal courts in the U.S. may not actually behave all that differently than court systems with an openly acknowledged common law tradition in administrative law. Although the US federal courts ostensibly apply the Administrative Procedure Act, in many ways they behave like common law courts, creating administrative law based on principles and policies that may or may not be consistent with the language, structure and history of the APA and other relevant provisions. Although in some areas, the Supreme Court has required a statutory focus, in other areas it has not, and the Court has not provided or even attempted to provide a principled justification for its continued use of administrative common law or a method for choosing between a statutory or common law method in any particular doctrinal area.
Keywords: administrative law, judicial review
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