Comparative Positive Political Theory and Empirics

15 Pages Posted: 26 Oct 2016  

Elizabeth Magill

Stanford Law School

Daniel R. Ortiz

University of Virginia School of Law

Date Written: October 26, 2016

Abstract

No theoretical approach to American administrative law over the past 50 years has been as influential as Positive Political Theory (PPT). In its view, the private and institutional incentives of legislators, administrators, judges, and the executive largely determine administrative law on the ground. Its advocates have offered provocative and refreshingly cynical accounts of many of the discipline’s practices and doctrines, including its most central ones. Comparative administrative lawyers have now begun to apply PPT more broadly to explain differences among different jurisdictions’ administrative law regimes.

This article seeks to test PPT by asking how well it explains one central doctrine in most administrative law systems: judicial review of agency discretion. PPT would predict that judicial review would become more searching the more divided a particular political system is. A presidential system like the US’s, for example, would apply much stricter review than a parliamentary system like the UK’s. The article looks at four different systems - those of the US, the UK, France, and Germany - to test whether this prediction holds.

The article considers the formal doctrine in each system, commentators’ views on each system, and empirical evidence, where available, and concludes that PPT by itself does not well explain law on the ground. It also argues that some of PPT’s most prominent advocates have recognized this weakness and complicated the theory in a way that allows it to better explain how administrative law operates while causing the theory to lose much of its distinctiveness and interest.

Keywords: Positive Political Theory, PPT, McNollgast, State Farm, arbitrary and capricious review, Wednesbury review, comparative administrative law, proportionality, reasonableness review, empirical

Suggested Citation

Magill, Elizabeth and Ortiz, Daniel R., Comparative Positive Political Theory and Empirics (October 26, 2016). Virginia Law and Economics Research Paper No. 2016-22; Virginia Public Law and Legal Theory Research Paper No. 2016-60. Available at SSRN: https://ssrn.com/abstract=2859594

Elizabeth Magill

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305
United States

Daniel R. Ortiz (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
804-924-3127 (Phone)
804-924-7536 (Fax)

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