Judicial Review and Compliance with Administrative Law.

Vol. 14 No.11 (November 2004), pp.878-881

JUDICIAL REVIEW AND COMPLIANCE WITH ADMINISTRATIVE LAW, by Simon Halliday. Oxford and Portland, Oregon: Hart Publishing, 2004. 188 pp. Hardcover $50.00 / £25.00 ISBN: 1-84113-265-9.

Reviewed by Eli Paul Mazur, Lecturer and Legal Programs’ Coordinator, The Fulbright Economics Teaching Program. epm1776@yahoo.com

Simon Halliday’s most recent book, JUDICIAL REVIEW AND COMPLIANCE WITH ADMINISTRATIVE LAW, will serve as an excellent resource for empirical researchers seeking to isolate the influence of judicial review on administrative decision-making, administrative law teachers wanting to enrich student comprehension with case-studies, and for all scholars interested in understanding the impact of judicial review on government action. Furthermore, Halliday’s book will be a tantalizing read for administrative lawyers because it presents, in the form of compelling narratives, “smoking-gun evidence” of non-compliance. He contributes significantly to the field by providing a sound analytical framework for further inquiry.

Administrative law is framed as a competition between the executive and judicial branch. Whereas, administrators believe their decisions deserve complete deference because of an institutionally superior proximity to the facts coupled with expertise, courts are loathe to permit bureaucrats to pervert the spirit of administrative law in the name of intuition. In this competition, courts have wide discretion in characterizing administrative decisions as “factual” (i.e., requiring deference) or “legal” (i.e., eligible for de novo review). According to many scholars and agency professionals, this characterization is primarily a function of a court’s perception of the administrative result. Whether right, wrong, transparent, or intellectually dishonest, when the judicial will conflicts with administrative judgment, the doctrine of judicial review reveals that judicial will is supreme. At the end of the day, however, courts must rely on agency bureaucrats to apply judicially formulated, and sometimes hotly contested, views of administrative law. For years, empirical researchers have strived to quantify the impact of judicial review on administrative decision-making. For Halliday, this task is fraught with difficulty because empirical research suffers from a dearth of analytical work isolating the influence of judicial review from the many other normative pressures within the administrative arena.

Halliday addresses this problem by developing an empirically useful analytical framework in his study of administrative decision-making within England’s Homeless Persons’ Units (HPUs). In England, the homeless have a right to government housing. Parliament delegates HPUs the authority to implement this entitlement. As Loveland (1995) has thoroughly discussed, English law leaves great discretion to administrators in determining whether an applicant’s entitlement is a “priority need” or, on the [*879] other hand, whether the applicant is ineligible because (s)he is “intentionally homeless.” Whereas Loveland’s study focused on the competing pressures influencing implementation, Halliday’s work draws a conceptual map of judicial review in relation to competing normative influences in the judicial quest to motivate bureaucrats to comply with administrative law.

Halliday’s study is organized around a series of hypotheses about administrative decision-makers, the decision-making environment, and legal doctrine. Unfortunately, many of these hypotheses sound tautological. For instance, Halliday asserts “ judicial review’s effectiveness in securing compliance with administrative law will be enhanced where the competition between law and other normative forces is non-existent, or if a competition exists, where law’s strength is increased in the environment” (p.87) (emphasis added). This and many other hypotheses seem self-evident. Despite the poor literary construction of his propositions, Halliday’s heuristic devise will successfully focus future empirical researchers on the important issues.

Drawing on Stanley Fish’s idea of “interpretative communities,” Halliday uses an ethnographic approach to develop his analytical framework. In a series of three-month studies, Halliday observed the three HPUs with the most extensive experience facing court challenges and, thus, responding to the commands of judicial review. Observing the decision-making process from the initial intake interviews to court hearings, Halliday conducted extensive post-observation interviews and collected a set of “naturalistic data about the administrative process” providing “the best opportunity . . . to experience the social world under study” (p.20). The agency’s internal social reality combined with external influences, such as law, to create the decision-making environment. In his effort to reduce this decision-making environment into quantifiable elements, Halliday’s socio-legal research of HPU decision-making “constitutes an empirical study of noncompliance” (p.19). His methodological approach breathes life into the often abstracted and decontextualized world of administrative decision-making, and his revealing interviews with HPU decision-makers make his work accessible to a broad range of readers.

In his first set of hypotheses, Halliday suggests compliance with administrative law is best secured in an environment where decision-makers are knowledgeable about, competent to interpret, and conscientious to apply, the law. He discovers that the HPU “decision-maker,” rather than a readily identifiable case manager, actually consists of a widely-dispersed “casework team.” Many members of the team exercise considerable discretion and influence in determining whether an applicant is to be characterized as homeless. For instance, although a “team leader’s” decision is required in many circumstances, the caseworker who interviews the applicant and investigates the claim is responsible for providing a detailed recommendation to the team leader. One caseworker asserted “if you’re an experienced caseworker, whatever you write will be accepted . . . . I think we all abuse that. . . . Its like writing a story” (p.43). Despite a decentralized decision-making [*880] process, Halliday finds that knowledge of administrative law is often limited to a managerial class. Thus, to be effective, judicial review must result in successful dispersal of legal knowledge to all administrators with a discretionary voice in the process.

For Halliday, however, mere knowledge of the law’s requirements is not sufficient to guarantee compliance with administrative law; rather decision-makers must care about acting lawfully. In HPUs, he discovers that many decision-makers who possess the requisite legal knowledge nevertheless engage in “creative compliance” or use legal rules to “bullet proof” decisions from meaningful judicial review. For example, one case manager suggested that, if an applicant “kicked up a fuss” by demanding a legally guaranteed right to “temporary accommodation” pending a homelessness investigation, “the easy option [is] to give them a [legally erroneous] decision-letter saying ‘You are not [eligible],’ let them challenge it, but in the meantime” finish the investigation, “quash the first decision and make a second decision. Even if it’s exactly the same, you then can’t be challenged on the first decision” (p.62). This lack of “legal conscientiousness” is not malicious but, rather, arises from an organizational culture that venerates “professional intuition,” is generally suspicious of applicant honesty, and believes that courts will fail to reach correct outcomes.

Developing a framework to explain this lack of “legal conscientiousness,” Halliday, in his second set of hypotheses, suggests that judicial review’s effectiveness in securing compliance with administrative law is negatively related to the existence, prevalence, and power of other normative forces competing for agency influence. The influence of normative forces, other than law, explains why some organizations spawn internal administrative biases, such as suspicion of applicant honesty.

Halliday consistently observes financial management, performance auditing, and political pressures competing with administrative law for normative supremacy. For instance, financial concerns directly resulted in one HPU changing its administrative policy regarding what percentage of applicants could meet the legal requirements of “priority need” for “temporary accommodations.” Thereafter, when it became clear that the costs of “temporary accommodation” could jeopardize caseworker job security, “[t]he mood changed . . . [and t]he practice now is prevention of [temporary accommodation] at all costs” (p.91). Similarly, Halliday finds that performance audits have a perverse impact on administrative law compliance. As one caseworker revealed, “targets . . . are life and death . . . most of us are on performance related pay . . . Therefore, there are compromises made . . . and I think that that has weakened the quality and depth of the casework” (p.96). Future empirical work may attempt to identify indices which correlate to the existence of these normative pressures, and to quantify the power of competing visions.

In his final hypothesis, Halliday suggests judicial review will better secure compliance with administrative law when a clear and consistent message is conveyed. In his analysis of [*881] administrative law doctrine, he reveals that courts operate in an environment where the meaning of administrative justice is highly contested. Outlining Mashaw’s (1983), and critiquing Adler’s (2004), models of administrative justice, Halliday settles on four normative visions: (1) bureaucratic rationality, (2) professional treatment, (3) moral judgment, and (4) consumerism. Whereas the first model emphasizes an agency’s role in implementing legislative will, the final three models have procedural visions related to the application of an administrator’s expert knowledge, fairness, and customer care.

Within an environment where the meaning of administrative justice is ambiguous, courts have developed a set of flexible doctrines capable of accommodating all of the contested visions. For Halliday, however, this doctrinal flexibility creates an uncertain environment for administrative decision-making. For instance, courts give substantial deference to an administrator’s factual determinations. Courts, however, have developed the unreasonableness doctrine to review decisions “so outrageous in [their] defiance of logic or of accepted moral standards that no sensible persons . . . could have arrived at [them]” (p.132). As one might suspect, the intensity with which this test is applied varies dramatically. Likewise, a court’s decision to characterize an administrator judgment as factual or legal, to reject a decision as procedurally unfair, or to question the rationality of the decision-making process, produces considerable discretion to promote an individual vision of administrative justice. For Halliday, this discretion, despite allowing results that tend to secure administrative justice in theory, is not conducive to conveying a clear and consistent message of administrative law requirements in fact.

JUDICIAL REVIEW AND COMPLIANCE WITH ADMINISTRATIVE LAW should be of interest to a broad class of empirical researchers and administrative law teachers. Despite his somewhat distracting use of tautological hypotheses, Halliday’s ability to weave narrative, social theory and legal doctrine creates a thought provoking text.

REFERENCES:

Adler, Michael. 2003. “A Socio-Legal Approach To Administrative Justice.” 25 LAW & POLICY 323-352.

Fish, Stanley. 1998. DOING WHAT COMES NATURALLY: CHANGE, RHETORIC AND THE PRACTICE OF THEORY IN LITERARY AND LEGAL STUDIES. Oxford: Oxford University Press.

Loveland, Ian. 1995. HOUSING HOMELESS PERSONS: ADMINISTRATIVE LAW AND PROCESS. Oxford: Clarendon Press.

Mashaw, Jerry L. 1983. BUREAUCRATIC JUSTICE: MANAGING SOCIAL SECURITY DISABILITY CLAIMS. New Haven: Yale University Press.

CASE REFERENCE:

ASSOCIATION PROVISIONAL PICTURE HOUSES LTD. v. WEDNESBURY CORPORATION, 1 KB 223 (1948).

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