Between the Agency and the Court: Ex Ante Review of Regulations

American Journal of Comparative Law, Vol. 68, 2020

45 Pages Posted: 1 Oct 2020

See all articles by Michael Asimow

Michael Asimow

SANTA CLARA LAW SCHOOL ; Santa Clara University - School of Law

Gabriel Bocksang Hola

Pontifical Catholic University of Chile - Law Faculty

Marie Cirotteau

Université Pantheon-Assas Paris II

Yoav Dotan

Hebrew University of Jerusalem - Faculty of Law

Thomas Perroud

Université Paris Est; Aix Marseille Université; Sciences Po - Chaire MADP; Yale Law School - Comparative Administrative Law Initiative

Date Written: August 16, 2020

Abstract

Administrative regulations are an important tool of modern government, but their legitimacy is often questioned since they are adopted by the executive branch rather than the legislature. Judicial review of the legality of regulations is necessary but not sufficient as an accountability mechanism because judicial review is subject to many practical and legal shortcomings, especially including its high cost. Consequently, the vast majority of regulations are never subject to judicial review, which creates an accountability deficit. This deficit can be remedied through ex ante administrative review of the legality of regulations by an executive branch agency that is independent of the adopting agency. This Article evaluates executive branch ex ante legality review schemes in California, Chile, Israel, and France. Although these regulatory review schemes vary greatly, each of them scrutinizes the substantive and procedural legality of regulations (as distinguished from their economic or environmental effect or their political acceptability). This review takes place before the regulations are judicially reviewed and before they become effective. Ex ante administrative review can compensate for the failings of judicial review, promote the rule of law, and enhance the legitimacy of the regulatory process.

Keywords: comparative administrative law, rule-making, accountability, judicial review, legitimacy

JEL Classification: K23

Suggested Citation

Asimow, Michael R. and Hola, Gabriel Bocksang and Cirotteau, Marie and Dotan, Yoav and Perroud, Thomas and Perroud, Thomas, Between the Agency and the Court: Ex Ante Review of Regulations (August 16, 2020). American Journal of Comparative Law, Vol. 68, 2020, Available at SSRN: https://ssrn.com/abstract=3675108 or http://dx.doi.org/10.2139/ssrn.3675108

Michael R. Asimow (Contact Author)

SANTA CLARA LAW SCHOOL ( email )

1275 Trinity Drive
Menlo Park, CA California 94025
United States
650-575-4858 (Phone)
94025 (Fax)

Santa Clara University - School of Law ( email )

500 El Camino Real
Santa Clara, CA 95053
United States

Gabriel Bocksang Hola

Pontifical Catholic University of Chile - Law Faculty ( email )

Alameda 340
Casa Central
Santiago
Chile

Marie Cirotteau

Université Pantheon-Assas Paris II ( email )

12 place du Panthéon
Paris, 75005
France

Yoav Dotan

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel
972548820462 (Phone)

Thomas Perroud

Université Paris Est ( email )

Batiment Bois de l'Etang
5 rue Galilee
Champs sur Marne, 77420
France

Aix Marseille Université ( email )

Faculté de droit
3 Avenue Robert Schuman,
AIX-EN-PROVENCE, 13628
France

Sciences Po - Chaire MADP ( email )

27 rue Saint-Guillaume
Paris Cedex 07, 75337
France

Yale Law School - Comparative Administrative Law Initiative ( email )

127 Wall Street
New Haven, CT 06511
United States

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