Administrative Law: Not Just for Public Interest Lawyers Any More
Posted: 3 Jul 2001
Approximately 15 states in the United States test Administrative Law on their bar examinations, and that number has increased and is likely to keep increasing. The growing inclusion of Administrative Law as a bar subject reflects a growing recognition that almost all lawyers will need some knowledge of Administrative Law in their practices, regardless of field of expertise. Moreover, the increase implicitly acknowledges that neither Civil Procedure nor Criminal Procedure ? two common and more traditional bar subjects ? adequately prepare budding lawyers to deal with an administrative tribunal.
Nevertheless, only about 20 American law schools require their students to take Administrative Law. Moreover, these schools split fairly evenly between those, like the Columbia University School of Law, that require their first-year students to take a course that gives them a general introduction to the regulatory state, and those law schools, like the Franklin Pierce School of Law, that require the full Administrative Law course as an upper-division requirement.
In contrast, LL.B. programs in the UK and Australia routinely require all law students to take Administrative Law. Their inclusion of Administrative Law as a required subject -- often in the first or second year, reflects a realization that Administrative Law is in fact a different practice that normal courtroom law. As one commentator has noted for Australian law, [t]he position occupied by administrative tribunals and the type of law applied therein, known as administrative law, is a matter of great importance. Moreover, UK and Australian law schools are more apt to describe Administrative Law as a course about the relationship between the citizen and the state (University of Wales), the control of power as exercised by government and other 'public' bodies (Queen's University of Belfast), Control of Discretionary Power (Cambridge). Finally, Australian law schools show a distinct tendency to describe Administrative Law as a practice-oriented course. Bond University, for example, discusses access to government information and the nature and scope of administrative and judicial review of government decisions and actions in terms of the order in which they can arise in practice, while Flinders University incorporates the theory and practice of legal interviewing into its required Administrative Law course.
My presentation and paper will explore the reluctance of American law schools to require that all law students be exposed to at least the basics of Administrative Law through a comparison of how UK, Australian, and American law schools currently treat Administrative Law as a subject. In particular, I will argue that whereas UK and Australian law schools tend to portray Administrative Law as a practice- and procedure-oriented subject with, at least in the UK, important international connections, American law schools currently describe Administrative Law in three basic ways: (1) as a subject with strong connections to Constitutional Law; (2) as an amalgam of various constitutional, statutory, and procedural doctrines; and (3) as a specific facet of how the American legal system functions, with its own specific rules and procedures.
In addition, my presentation will use the comparative approach to explore the extent to which American law schools continue to view Administrative Law as a course for public interest lawyers-to-be, but not for lawyers in general.
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