This work examines the development and performance of federal independent regulatory bodies in Canada in the period up to 1979, with particular attention to the operation of legislative schemes that include executive review and appeal powers. The author assesses the impact of the exercise of these powers on the administrative law process, and proposes new models for the generation, interpretation, implementation, review, and enforcement of regulatory policy. The study includes a series of representative case studies based on documentation and (...) extensive interviews with individuals drawn from government, agencies, and other parties, including counsel for public interest groups. This enables author, writing from her experience as a participant-observer embedded in the public interest legal sector, to draw on the experiences and perspectives of a broad range of participants in the regulatory process, including but not limited to those dealing with the regulated energy, transportation, communications, and foreign investment sectors. Legal principles identified as emergent in leading judicial decisions in administrative law are used to assess the powers and practices used in executive reviews and appeals. The author finds those powers and practices to be flawed and proposes changes. The proposed models are designed to accord with emerging legal principles and avoid flaws of the types identified in the review and appeal provisions. This work, written under contract with the Administrative Law Project of the Law Reform Commission of Canada, formed one part of a comprehensive study of administrative law at the federal level in Canada. (shrink)

The last decade or so has seen an explosion of scholarship by American law professors on what has become known as administrative constitutionalism. Administrative constitutionalism is a catchphrase for the role of administrative agencies in influencing, creating, and establishing constitutional rules and norms, and governing based on those rules and norms. Though courts traditionally get far more attention in the scholarly literature and the popular imagination, administrative constitutionalism scholars show that administrative agencies have (...) been extremely important participants in American constitutional development. Section I of this essay identifies three different versions of administrative constitutionalism—(1) Engagement with Existing Constitutional Doctrine; (2) Resolving Questions of Statutory Meaning that Implicate Constitutional Questions; and (3) Shadow Administrative Constitutionalism—and provides examples from the scholarly literature to illustrate these distinct manifestations of administrative constitutionalism. Section II of this essay discusses the normative turn in administrative constitutionalism scholarship. Much of this normative literature is implicitly or explicitly premised on the notion that agencies are more likely to pursue progressive goals than are other government actors. Section III of this essay disputes the notion that agency constitutional decision-making is “democratic” and that agencies are naturally inclined to serve progressive goals. Finally, Section IV of this essay notes that scholars who support broad agency autonomy to work out and enforce their own constitutional visions have failed to consider how their work fits in with the economic and political science literature on agency behavior. One can predict, based on that literature, that agencies given broad autonomy under the guise of administrative constitutionalism will primarily be inclined to expand their scope and authority at the expense of countervailing considerations. (shrink)

In October 1993, a survey of health care agency administrators was undertaken shortly after they had experienced two sudden reductions in public funding. The purpose of this investigation was to gain insight into the role of ethics in health administrator decision making. A mail questionnaire was designed for this purpose. Descriptive statistics and content analysis were used to summarize the data. Staff reductions and bed closures were the two most frequently reported mechanisms for addressing the funding reductions. Most administrators did (...) not believe that these changes would have a negative public impact. In contrast, the majority indicated that future changes in reaction to additional funding reductions would have a negative public impact. Approximately one-third of the administrators reported ethics to be an element of recent administrative decision making, and one-half could foresee that ethics would be important in the future if reductions continued. These findings are discussed in relation to ethics. Issues for additional research are outlined. (shrink)

President Trump verbally attacked human rights in his campaign rhetoric in 2016, leading many to believe that he would undermine the role of human rights in US foreign policy as President. I examine whether or not President Trump’s anti-human rights rhetoric manifested in US foreign policy by analyzing potential changes in how human rights were considered in foreign aid allocations under the Trump Administration. While President Trump had a number of executive tools at his disposal to exert control over foreign (...) aid allocation, he would still have had to overcome considerable bureaucratic and legislative inertia in order to implement his anti-human rights agenda in US foreign aid. I demonstrate that he was unsuccessful in overcoming this inertia, at least in the first 2 years of his Administration (the years for which data is currently available). If anything, human rights received more consideration under President Trump than under President Obama. (shrink)

Administrative justice receives varying emphasis in different jurisdictions. This article explores empirical legal studies, which fall on either side of the decision making-and-review dividing line. It then seeks to link research on the impact of dispute resolution and on-going administrative practices. The article also highlights limitations in existing impact research, focusing on the tendency to examine single dispute resolution mechanisms in isolation from others. Furthermore it suggests some future directions for empirical administrative justice research. It also explores (...) the potential of legal consciousness research for empirical administrative justice scholarship, and suggests new territories for administrative justice researchers: criminal justice processes and administrative activities of private agencies. It concludes by presenting an argument that a mapping of administrative justice institutions, both historically and cross-jurisdictionally, can reveal much about how relationships between citizens and administrative agencies may shift across time and space. (shrink)

This paper addresses a small but important subset of the challenges to ethical behaviour that face senior university administrators in their daily work, namely, errors in moral judgment which arise from over-identification and loyalty to the institution. The domain and precipitating factors are not unique to universities but may be more intensely experienced due to two features of the traditional public and private not-for-profit university that are unique. These features include the historical nature and purpose of a university and the (...) role of the university professor in the production and dissemination of knowledge. (shrink)

The US Food and Drug Administration’s controversial decision to grant accelerated approval to aducanumab (Aduhelm), a therapy for Alzheimer’s disease, has motivated multiple policy reforms. Drawing a case series of other drugs granted accelerated approval and interviews of senior FDA officials, I argue that reform should be informed but not defined by aducanumab. Rather, structural reforms are needed to reshape FDA’s core priorities and restore the regulatory system’s commitment to scientific rigor.

Normative political theorists have been growing more and more aware of the many difficult questions raised by the discretionary power inevitably left to public administrators. This article aims to advance a novel normative principle, called ‘principle of restraint’, regulating reform of established administrative agencies. I argue that the ability of public administrators to exercise their power in accordance with the requirements of public reason is protected by an attitude of restraint on the part of potential reformers. Specifically, they (...) should refrain from any reform of an administrative agency that involves a switch to a considerably more loosely interconnected system of values underlying the work of that agency. To illustrate the importance of the principle of restraint, I examine a case from British health policy, showing that a recent reform of the National Institute for Health and Care Excellence well exemplifies the serious problems brought by any violation of that principle. (shrink)

This Article considers the conditions under which administrative agencies - particularly those with public health-related missions - may obtain partial autonomy from external interests or politicians. In the process, it critiques the proposition that administrative agencies in advanced industrialized countries such as the United States are routinely “captured” by external economic interests. Through case studies and the application of relevant theory from law and the study of political organization, the Article describes how agencies can produce (...) a measure of autonomy by forging coalitions of stakeholders both internal and external to the agency, and considers how partial autonomy may be modeled as a strategic process involving decisions under uncertainty. The Article then investigates how American publichealth agencies such as the Food and Drug Administration, the Food Safety Inspection Service, and the Centers for Disease Control have been able to use their partial autonomy to develop significant health policy innovations. Although agencies are by no means guaranteed even a partial degree of autonomy, they are nonetheless capable of affecting their political and legal environment, with consequences not only for public-health policy but also for the legitimacy of the nation-state. (shrink)

The “folk” theory of democracy that typically justifies the administrative state cannot help but lead to a discourse of constraint. If agency action is only legitimate when it mechanically applies the will of the voters as transposed by Congress through statutes, then the norms guiding that action will inevitably restrain agency discretion. As a result, attempts to establish the democratic credentials of the administrative state ironically obstruct the application of collective power. But this “folk” theory of democracy is (...) bad theory. It is empirically incredible and, alarmingly, facilitates dangerous populist politics. Political theory instead suggests that a theory of democratic representation not only better explains legislative outcomes, but also deprives demagogues and deregulatory partisans of the fictions that prop up their agendas. After a brief survey of representative theory, this article will demonstrate that a model of trustee representation adequately describes administration, reinforces its democratic credentials and constitutes a space for politics in shaping the regulations that govern us all. (shrink)

There has always been a tension, in theory, between the public accountability and the professional efficiency of the agencies of the administrative state. How has that tension been handled? What would it be like for it to be well handled?

One antidote to moral distress is stronger moral agency—that is, an enhanced ability to act to bring about change. The Clinical Ethics Residency for Nurses, an educational program developed and run in two large northeastern academic medical centers with funding from the Health Resources and Services Administration, intended to strengthen nurses’ moral agency. Drawing on Improving Competencies in Clinical Ethics Consultation: An Education Guide, by the American Society for Bioethics and Humanities, and on the goals of the nursing profession, CERN (...) sought to change attitudes, increase knowledge, and develop skills to act on one's knowledge. One of the key insights the faculty members brought to the design of this program is that knowledge of clinical ethics is not enough to develop moral agency. In addition to lecture‐style classes, CERN employed a variety of methods based in adult learning theory, such as active application of ethics knowledge to patient scenarios in classroom discussion, simulation, and the clinical practicum. Overwhelmingly, the feedback from the participants (sixty‐seven over three years of the program) indicated that CERN achieved transformative learning. (shrink)

An area agency on aging (AAA) is a public or private nonprofit organization designated by the state to address the needs and concerns of all older persons at the regional and local levels in the United States (Administration for Community Living (ACL) 2019). AAAs have a successful history of developing, coordinating, and implementing comprehensive networks of services and programs that enrich communities and the lives of older adults. AAAs were established through a provision of the Older Americans Act (OAA 1965), (...) which was signed into law by President Lyndon B. Johnson. Specifically, AAAs were created with the 1973 reauthorization of the OAA. AAAs create the infrastructure to execute comprehensive long-term support services that ensure the independence of older adults. (shrink)

The primary responsibility of the US Food and Drug Administration is to protect public health by ensuring the safety of the food supply. To that end, it sometimes conducts risk assessments of novel food products, such as genetically modified food. The FDA describes its regulatory review of GM food as a purely scientific activity, untainted by any normative considerations. This paper provides evidence that the regulatory agency is not justified in making that claim. It is argued that the FDA’s policy (...) stance on GM food is shaped by neoliberal considerations. The agency’s review of a genetically engineered animal, the AquAdvantage salmon, is used as a case study to track the influence of neoliberalism on its regulatory review protocol. After that, an epistemic argument justifying public engagement in the risk assessment of new GM food is outlined. It is because risk evaluations involve normative judgments, in a democracy, layperson representatives of informal epistemic communities that could be affected by a new GM food should have the opportunity to decide the ethical, political or other normative questions that arise during the regulatory review of that entity. (shrink)

Today, public health regulation at all levels faces unprecedented challenges both at home and abroad. The September 11, 2001 attacks on New York and Washington, D.C., by the Al Qaeda terrorist network and the anthrax bioterrorism that followed shortly thereafter have put public health regulation at the forefront of homeland security. The anthrax scare, in particular, has greatly tested the American public health system, calling into question whether the United States and its component states and localities are prepared to handle (...) a major outbreak of infectious disease, such as smallpox, in a future bioterrorist action. While the response of public health agencies was commendable, especially in light of the magnitude of the assaults, it is manifestly clear that the American public health system will be hard pressed to meet similar challenges that may lie ahead.The events of fall 2001 follow a period of major challenges for public health. The AIDS pandemic has killed millions of people throughout the globe, especially in Africa and other parts of the developing world. (shrink)

Automated decision-making takes up an increasingly significant place in the administrative state. This article presents a conception of discretion that is helpful for evaluating the proper place of algorithms in public decision-making. I argue that the algorithm itself is not a site of discretion. The threat is that automated decision-making alters the relationships between traditional actors in a way that can cut down discretion and human commitment. Algorithmic decision-makers can serve to fetter the discretion that the legislature and the (...) populace expect to be exercised. We must strive to maintain discretion, moral agency, deliberative ideals, and human commitment through the system that surrounds the use of an algorithm and to develop a new expertise that can retain and exercise the expected discretion. Backing this argument are traditional legal constraints, public expectations, and administrative law principles, tied together through the organizing principle of discretion. (shrink)

On January 18, 2011, President Obama signed Executive Order 13563, Improving Regulation and Regulatory Review, which instructs federal regulators to do the following: coordinate their agencies activities to simplify and harmonize rules that may be overlapping, inconsistent, or redundant; determine whether the present and future benefits of a proposed regulation justify its potential costs (including taking into account both quantitative and qualitative factors); increase participation of industry, experts, and the public (“stakeholders”) in the formal rule‐making process; encourage the use (...) of warnings, default rules, disclosure requirements, and provisions of information to the public as an alternative to traditional “command‐and‐control” rule‐making restricting consumer choice; and mandate a government‐wide review of all existing administrative rules to remove outdated regulations. Executive Order 13563 includes a qualitative “values” provision to be considered in the required cost–benefit analysis, which can potentially counteract the alleged regulatory reform rationale of President Obama. Furthermore, in Executive Order 13563, President Obama established a deadline of May 18, 2011, for all executive branch agencies to submit their plans to streamline their rulemaking operations and repeal those “overlapping, inconsistent, or redundant” rules. These two issues, along with complementary regulatory review proposals being discussed in the U.S. Congress, are evaluated in this essay. (shrink)

Teacher emotion, an important aspect of language teacher psychology, has recently drawn growing attention in language teacher development studies. Previous research has shown that language teachers, typically pressured by heavy workloads, may face emotional challenges from multiplied sources, especially in the context of educational changes such as curriculum reform and the COVID-19 emergency. Current literature on teachers’ emotions largely centers around ordinary language teachers, with teacher leaders whose agentic actions often exert greater influence on the effectiveness of educational changes rarely (...) examined. Situated in a top-tier research university that has been promoting an English for Academic Purposes reform to enhance its science students’ multilingual competence in academic contexts, this longitudinal case study tracked the emotional trajectory of an English teacher, Lea, for 5 years. Adopting an ecological perspective, our study confirms that language teachers’ emotions vary across the reform ecosystems and extends the current inquiry by conceptualizing the intricately interrelated teacher emotion, agency, power, and identity as dynamic constructs. This study also reveals how the reform-inflected emotional changes were associated with Lea’s EAP teacher and teacher leader identity construction, with both identities reinforcing each other, which to some extent reconciled Lea’s emotional tensions. Our study bears significant implications for language teachers involved in educational reform, teacher leaders, and school administrators. (shrink)

Industry-funded religious liberty legal groups have sought to undermine healthcare policy and law while simultaneously attacking the rights of sexual and gender minorities. Whereas past scholarship has tracked religiously-affiliated healthcare providers’ growing political power and attendant transformations to legal doctrine, our account emphasizes the political donors and visionaries who have leveraged religious providers and the U.S. healthcare system’s delegated structure to transform social policy and bureaucratic agencies more generally.

Today, public health regulation at all levels faces unprecedented challenges both at home and abroad. The September 11, 2001 attacks on New York and Washington, D.C., by the Al Qaeda terrorist network and the anthrax bioterrorism that followed shortly thereafter have put public health regulation at the forefront of homeland security. The anthrax scare, in particular, has greatly tested the American public health system, calling into question whether the United States and its component states and localities are prepared to handle (...) a major outbreak of infectious disease, such as smallpox, in a future bioterrorist action. While the response of public health agencies was commendable, especially in light of the magnitude of the assaults, it is manifestly clear that the American public health system will be hard pressed to meet similar challenges that may lie ahead.The events of fall 2001 follow a period of major challenges for public health. The AIDS pandemic has killed millions of people throughout the globe, especially in Africa and other parts of the developing world. (shrink)

Can we rely on the altruism of professionals or the public service ethos to deliver good quality health and education services? How should patients, parents and pupils behave - as grateful recipients or active consumers? The book provides new answers to these questions, and evaluates recent government policies in health services, education, social security and taxation, and puts forward proposals for policy reform: universal capital or 'demogrants', discriminating vouchers, matching grants for pensions and for long-term care and hypothecated taxes.

Introduction: and a pop quiz -- Administrative ethics: ideas, sources, and development -- Refining the sense of duty: responsibilities of public administrators and the issue of agency -- Reinforcing and enlarging duty: philosophical bases of ethical behavior and the ethics triangle -- Codifying duty and ethical perspectives: professional codes of ethics -- Undermining duty: challenges to the ethical behavior of public administrators -- Deciding how to meet obligations and act responsibly: ethical analysis and problem solving -- Acting on duty (...) in the face of uncertainty and risk: responsible whistleblowing -- Elevating ethical behavior in the organization -- Mandating duty: external measures to promote ethics -- Conclusion: the duties of public administrators. (shrink)

In this article, we argue for a study of educational administration centered on an ontology of practices. This is an initial proposal for thinking about and conceptualizing practices in educational administration. To do this, first, we explore how practices are constituted and how they configure the social realities of practitioners. Second, we explore what an ontology of practices has to offer for our understanding of organizations. Third, we examine how an ontology of practices might inform our understandings of leadership in (...) educational organizations, and we conclude by exploring some implications of an ontology of practices for the study of educational administration. (shrink)

The process of risk assessment of biotechnologies, such as genetically modified organisms (GMOs), has normative dimensions. However, the US’ Food and Drug Administration (FDA) seems committed to the idea that such evaluations are objective. This essay makes the case that the agency’s regulatory approach should be changed such that the public is involved in deciding any ethical or social questions that might arise during risk assessment of GMOs. It is argued that, in the US, neither aggregative nor deliberative (representative) democracy (...) ought to be used to make such determinations. Instead, participatory (deliberative) democracy should be the means by which members of the polity decide which normative concerns ought to underlie FDA’s assessment of GMOs. This paper uses a hypothetical case involving a new GM seed to make that argument. (shrink)

The agencies of the government of the United States of America, such as the Food and Drug Administration or the Environmental Protection Agency, intervene in American society through the collection, processing, and diffusion of information. The Presidency of Barack Obama was notable for updating and redesigning the US government’s information infrastructure. The White House enhanced mass consultation through open government and big data initiatives to evaluate policy effectiveness, and it launched new ways of communicating with the citizenry. In this (...) essay we argue that these programs spelled out an emergent epistemology based on two assumptions: dispersed knowledge and a critique of judgment. These programs have redefined the evidence required to justify and design regulatory policy and conferred authority to a new kind of expert, which we call epistemic consultants. (shrink)

The American administrative state is a feature of the new liberalism that is largely irreconcilable with the old, founding-era liberalism. At its core, the administrative state, with its delegation of legislative power to the bureaucracy, combination of functions within bureaucratic agencies, and weakening of presidential control over administration undercuts the separation-of-powers principle that is the base of the founders' Constitution. The animating idea behind the features of the administrative state is the separation of politics and administration, (...) which was championed by James Landis, the New-Deal architect of the administrative state for President Franklin Roosevelt. The idea of separating politics and administration, and the faith such a separation requires in the objectivity of administrators, did not originate with Landis or the New Deal but, instead, with the Progressives who had come a generation earlier. Both Woodrow Wilson and Frank Goodnow were pioneers in advocating the separation of politics and administration, and made it the centerpiece of their broad arguments for constitutional reform. (shrink)

This essay inquires whether a constitutional state, understood as one ruled not by natural persons but by laws and legal decisions that free persons can endorse, can accommodate the administrative state, understood as one wherein executive agencies exercise law-making, statute-interpreting, and sanction-levying powers. Drawing from Rousseau and Hegel, it distinguishes between two stringent models of the constitutional state – a democratic-republican model and one ordered to an autonomous concept of Law – and compares their abilities to accommodate an (...) executive with a robust law-making and statute-interpreting authority. The essay concludes that, whereas the democratic-republican model is hostile to the administrative state, the Law-centred model is at ease with it and allows it to flourish within bounds. The Law-centred model is thus the only one to reconcile a stringent concept of the constitutional state with the executive power that state needs to fulfil its positive obligations to its citizens. (shrink)

In many cases, mosques have been accused by anti-terror agencies as a potential place to spread transnational Islamic ideologies. This study examines the perceptions of mosque administrators (ta’mīr) about Pancasila, Islamic sharia and transnational ideology. This research took place in South Tambun, a densely populated subdistrict in Bekasi, West Java. Mostly populated by urbanites, it has heterogeneous religious understanding. A quantitative research method with descriptive statistics is used in this study to analyse the results of the survey conducted. Furthermore, (...) a qualitative technique is carried out through a series of interviews conducted with the respondents. Triangulation is carried out to increase the validity and credibility of the findings. The results showed that 40% of mosque administrators surveyed thought that transnational ideologies were not in accordance with the spirit of Pancasila. Meanwhile, the remaining 40% and 20% of respondents, respectively, consider transnational ideologies to be dangerous to social order, and divisive. The qualitative analysis shows that the respondents do not want the implementation of Islamic sharia and an Islamic state within the Indonesian constitutional framework.Contribution: This research can be used by policymakers and anti-terror agents to proportionally and participatively involve mosque administrators to narrow the wiggle room for the spread of transnational ideology. (shrink)

In the context of the ever-increasing political problematization of migration in Europe, agencies charged with migrant administration create diverse categories of difference to distinguish between the 'deserving migrant' and the illegal one: They assess the detainability or the credibility of asylum seekers, the danger posed by Islamic organizations, and make situational decisions that determine whether migration or labour law applies to individual agricultural workers. In this book, each chapter analyses how organizational interpretations 'in service of' the common good shape (...) bureaucratic practices. Together, these ethnographic analyses reveal how migration policies in different European countries take shape in administrative practice."--Back cover. (shrink)

This study draws on the ecological perspective of teacher agency to examine the manifestation of English teachers' agency toward the ongoing curriculum reform in China and the factors that impact it. This study surveyed 353 high school English teachers and then collected data from three case study participants through in-depth interviews. The findings showed that the majority of teachers surveyed exhibited positive attitudes and beliefs about implementing the reform and inclinations to change, but the teachers also showed a constrained state (...) of agency in practice. Teacher agency developed as the teachers exerted sustained pedagogical change and reflection on reform-based practices. Through the findings, prior experiences and reform-oriented beliefs were found to mediate teachers' agency, and reform-related experiences were more influential than future goals in shaping agency. The factors of perceived school culture that involved teachers' interaction with students, colleague cooperation, and administrative support also medicated teachers' agency in practice. Implications are proposed for policymakers and school leaders to help teachers coordinate inconsistencies between high-stakes examination preparation and holistic education and make positive sense of professional development in the context of educational changes. (shrink)

This essay explains how to use the calculus of consent framework to think more rigorously about self-governance, and applies this framework to the issue of evaluating federal regulatory agencies. Robust political economy is the idea that institutions should be designed to work well even under weak assumptions about decision-makers’ knowledge and benevolence. I show how the calculus of consent can be used to analyze both incentives and knowledge problems. The calculus is simultaneously a theory of self-governance and a tool (...) for robust political economy analysis. Applying this framework to the case of public administration leads to the conclusion that private goods (such as medicine) tend to be over-regulated, public goods tend to be under-regulated (such as enabling too much pollution), and regulatory agencies tend to be over-centralized (and should in most cases either be replaced with certification markets or moved to state level). (shrink)

The U.S. Food and Drug Administration (FDA) announced recently that food products derived from some animal clones and their offspring are safe for human consumption. In response to criticism that it had failed to engage with ethical, social, and economic concerns raised by livestock cloning, the FDA argued that addressing normative issues prior to issuing a final ruling on animal cloning is not part of its mission. In this article, the authors reject the FDA's claim that its mission to protect (...) and advance public health can be accomplished without considering ethical issues or without making value judgments. The authors offer two arguments in support of their position. First, the agency's mission statement presupposes significant normative commitments and judgments. Second, the FDA's risk assessment of food products from cloned animals and their offspring is itself clearly shaped by a variety of normative commitments. (shrink)

Following the Roosevelt administration’s implementation of New Deal programs in the 1930s, the federal courts began to interpret the Constitution in a way that accommodated the rise of the “administrative state,” and bureaucratic policymaking continues to persist as a central feature of American government today. This essay submits, however, that the three pillars supporting the administrative state—the congressional delegation of Article I powers to the executive branch, the combination of powers within individual administrative entities, and the insulation (...) of administrators from political control—might be reconsidered by the courts in the near future. After showing that the constitutionality of the administrative state has come under recent judicial scrutiny, the essay turns to the administrative law principle of deference, and argues that a reassessment of the Chevron doctrine seems imminent. Finally, the essay examines federal courts’ heavy use of “hard look” review as a means of curtailing agency discretion during recent administrations, and concludes that this judicial practice stands in uneasy tension with republican principles. (shrink)

Within health care systems, negative perceptions of lesbian, gay, bisexual, and transgender persons have often translated into denial of services, denial of visitation rights to same‐sex partners, reluctance on the part of LGBT patients to share personal information, and failure of workers to assess and recognize the unique health care needs of these patients. Other bureaucratic forms of exclusion have included documents, forms, and policies that fail to acknowledge a patient's valued relationships because of, for example, a narrow definition of (...) “spouse,” “parent,” or “family.” Bureaucratic exclusion has taken a particularly prominent form in the U.S. military. Until its repeal and termination in 2011, the “Don't Ask, Don't Tell” policy had for eighteen years barred openly gay men and lesbians from serving in the military. Among the effects of DADT is a dearth of information about the number and needs of LGBT service members who transition to the Veterans Health Administration for health care at the end of their military service. The long‐standing social stigma against LGBT persons, the silence mandated by DADT, and the often unrecognized bias built into the fabric of bureaucratic systems make the task of creating a welcoming culture in the VHA urgent and challenging.The VHA has accepted a commitment to that task. Its Strategic Plan for fiscal years 2013 through 2018 stipulates that “[v]eterans will receive timely, high quality, personalized, safe, effective and equitable health care irrespective of geography, gender, race, age, culture or sexual orientation.” To achieve this goal, the VHA undertook a number of coordinated initiatives to create an environment and culture that is informed, welcoming, positive, and empowering for the LGBT veterans and families whom the agency serves. (shrink)

The objective of this paper is to present a legal theory of agency selection. The theory posits why certain legal forms of agency are chosen when agencies are created by the executive branch of government. At the core of the theory is the idea that the executive branch chooses agency forms that strike a politically optimal balance between maximising its control while minimising its legal and political accountability for agency activities. This optimal balance is determined on an issue by (...) issue basis. As such, the rise of the regulatory state has provided a means by which the executive branch of government has been able to strategically choose to divest itself of and minimise its legal accountability for the administration of government while, at the same time, maintaining effective political control of the administrative arm of government. (shrink)

This work serves as an introduction to both the theoretical and practical aspects of using computers to improve the delivery of social services. Though many practitioners believe that computerization dehumanizes clients and should be avoided, John Murphy and John Pardeck demonstrate how, through a holistic approach to computer use, this problem, and others like it, can be averted. By providing practitioners the opportunity to sharpen their conceptual skills in computer technology, this book promotes a rational understanding of the possible uses (...) and limitations of computers in social service agencies. Unlike other, technically-oriented works in this field, Murphy and Pardeck's work focuses on the philosophical justification of computer use, along with the conceptual or symbolic nature of computerization. They fully illustrate how to create the organizational conditions necessary for computers to improve social-service delivery, and they do so in a manner that is easily accessible for both general classroom and professional use. Among the topics addressed are the technological world-view, Western philosophy, and knowledge; computer mediated therapy; ethical issues related to computerized service delivery; and construction of a socially responsible technology. This work will be a unique and important resource for courses in computer applications, policy analysis, and social service administration, as well as a useful reference source for human service agencies and practitioners. Public and academic libraries will also find it to be a valuable addition to their collections. (shrink)

Given the profound public health and economic ramifications of decisions made by the U.S. Food and Drug Administration, the degree to which FDA activities should reflect an approach founded on complete transparency versus one focused on preserving confidentiality of information deserves public discussion. On one hand, reasonable requirements for transparency are critical to stimulating effective innovation, knowledge dissemination, and good business practice. On the other, ensuring the vitality of the medical products industry requires protecting legitimately proprietary information. With current standards (...) reflecting a lengthy accumulation of legal, regulatory, and practical precedent, recent significant changes in the environment in which the FDA operates should prompt a critical examination of current practices. In this article, I comment on Sharfstein and colleagues’ “Blueprint for Transparency,” which calls for multiple specific actions to increase transparency at the agency across five key areas, including interactions between FDA and industry, public disclosure of internal FDA analyses, deliberations concerning generics and biosimilars, expanded access to raw study data, and approaches to countering misleading information in the public sphere. I evaluate these recommendations in light of my experience as a clinician, researcher, and former FDA Commissioner, and reflect on possible outcomes that could result from enacting these practices. (shrink)

This paper analyzes the scenario for a post-revolutionary society as developed in Lenin’s “The State and Revolution.” Lenin heavily relies on Marx and Engels’s metaphors of waking up and falling asleep: Post-revolutionary society is marked by a grand awakening and a conversion of dreams into reality, while the State is said to fall asleep or wither away. Lenin applies these metaphors yet applies them in a strangely inverted manner. Instead of embracing agency, he argues for a new regime of “habit,” (...) which has sedating effects on humans, while the state survives its demise and returns under the title of “administration.” Lenin’s plea for “habit” and “administration” is discussed in a broader context of other philosophical accounts reaching from Kant to Hegel, Max Weber, Ludwig Wittgenstein, Hannah Arendt and beyond. These critical considerations lead to some general findings on the status of moral agency in revolutionary change. Trotsky’s account of permanent revolution with its experimentalist and theatrical implications is a case in point here. The paper concludes by discussing the intricate relation between revolution, democracy, and the state. (shrink)

American policymakers delegate the administration of many welfare programs to states, where officials implement them in increasingly diverse ways. Welfare state scholarship has little to say about this subnational policy divergence, and it portrays the complexity of delegated governance as a barrier to nonelite legislative influence. Drawing on an ethnographic study of one state’s Medicaid program, this article shows that delegated governance offers ample opportunity for nonelite influence and policy divergence, but through regulatory governance rather than legislative advocacy. Medicaid is (...) opaque to politicians, whose inability to monitor program details creates conditions of bureaucratic autonomy and even activism: health-care agency personnel sequence regulatory tweaks to protect and expand entitlements. But budget cuts, outsourcing, and fraught provider relations also deprive bureaucrats of street-level know-how, and bureaucrats depend on beneficiaries’ advocates who selectively illuminate a path to reform. A full rendering of subnational divergence in American federalism requires attention to underexamined factors such as bureaucratic activism, agency advocacy, and regulatory governance. (shrink)

In the words of Aristotle, "The state is a union of families and villagers having for an end, a perfect and self-sufficing life by which we mean a happy and honourable life. A state exists for the sake of good life and not for the sake of life only". This definition has given a clear vision on the relationship between man and the state. The state, in modern times is regarded as an important agency or in other words a human (...) organization for maintaining disciplined and a well-arranged environment for education. In contemporary world, the functions to be performed by a state are going wide day by day. So, one of the functions of a state is to give proper education and to create a proper environment for imparting knowledge among people. In a democratic country the role of state in spreading education is very much important. These states provide educational aims and objectives, open schools and colleges; arrange the syllabus and curriculum, plan, control and direct educational activities for their citizens. Performing these functions the modern states can create such an environment in every society where every citizen can be made educated enough to understand the complexities of modern world. Besides these, the modern world can make proper arrangements for research and experiments in various fields of education. For this a state should establish such institutions and organisations to inspire the eligible individuals. In a big country like India, the state makes educational policies based on needs, ideals and aspirations of the people. For this there are various administrative unites are established. Each such unites maintain an educational department of it’s own for providing liberal and vocational education up to highest standard. States also maintain one or more universities for higher education. Thus, it can be said that a state exerts it’s direct and indirect influences on all aspects of education. (shrink)

Police training plays a crucial role in the development of police officers. Because the training of police officers combines various educational components and is governed by organizational guidelines, police training is a complex, multifaceted topic. The current study investigates training at six European law enforcement agencies and aims to identify strengths and challenges of current training organization and practice. We interviewed a total of 16 police instructors and seven police coordinators with conceptual training tasks. A thematic analysis was conducted (...) and results organized in the two main themes evident across all six law enforcement agencies: organization of training and delivery of training. Results show that governmental structures and police executive boards are seen as the primary authorities that define the training framework in which police instructors operate. These administrative structures regulate distant and immediate resources, such as available training time, training facilities, equipment, and personnel. Within the confines of available resources and predetermined training frameworks, results indicate that police instructors thoroughly enjoy teaching, creating supportive and motivating learning environments, and applying their personal learning perspectives to training. Nonetheless, police instructors are critical of the level of training they are able to achieve with the available resources. (shrink)

How might a theory of communicative rationality be applied to policymaking to secure the morally justifiable administration of public education? In answer, Darron Kelly uses conceptual resources found in Habermasian practical discourse to outline development of a survey instrument. The survey is designed to measure constituent satisfaction with actual conditions of educational policymaking. To do this, the survey operationalizes and quantifies the epistemic conditions of inclusion, participation, truthfulness, and noncoercion. Once captured, analysis of these conditions in actual cases of policymaking (...) further provides for assessment of the degree of communicative agency and rational trust experienced by educational constituents. The instrument, as such, offers a standard gauge of the higher-level intersubjectivity of institutional communication in education — a necessary measure for constructing morally justifiable policies. (shrink)

Shrinking resources and the increasing complexity of clinical decisions are stimulating research in knowledge-intensive computer applications for the delivery of social services. The expected benefits of knowledge-intensive applications such as expert systems include improvement in both the quality and the consistency of service delivery, augmentation of institutional memory, and reduced labour costs through greater reliance on paraprofessionals. This paper analyses the likely impacts of knowledge-intensive systems on social service organisations, drawing on trends in related service-delivery fields, and on known impacts (...) of computer applications in organisations. A structural change may be anticipated: decision making and planning functions will shift increasingly from social service professionals to administrators. (shrink)

In “Disentangling Conscience Protections,” in this issue of the Hastings Center Report, Nadia Sawicki offers a taxonomy of conscience protection laws (conscience clauses) that highlights the expansive protections they can offer to health professionals who refuse to provide a medical service for reasons of conscience. Conscience clauses can protect health professionals from adverse actions by public actors (such as administrative agencies, prosecutors, and government funders) or private actors (such as employers, private professional associations, and injured patients), and they (...) can also protect health professionals from being subject to adverse actions for their beliefs, their conduct, or harm that results from their conduct. This taxonomy provides an accurate description of the broad range of protections conscience clauses can offer and thereby is a valuable contribution to the scholarly literature on conscientious objection in health care. But it remains to consider whether the distinctions Sawicki identifies disentangle conscience protections beyond merely providing a taxonomy. In particular, does the taxonomy identify relevant distinctions in relation to determining whether a conscience clause is justified? (shrink)

Elected politicians—legislators and, in some systems, members of the executive—can choose to exercise authority themselves or to delegate that authority to any number of agencies. Such delegation of power can occur at the constitutional stage, but is most common at the post-constitutional stage. Two categories of delegation can be distinguished: domestic delegation to agencies within the legislators’ jurisdiction, and international delegation to supranational or international bodies. While some research has been done on domestic delegation, especially in the context (...) of delegation to administrative agencies in the U.S., as well as on delegation to supranational bodies, especially with regard to the E.U., these activities have not been analyzed within a unified framework. This paper attempts to inquire into these issues and provide a general picture of the decision-making process regarding whether to delegate authority and to which body to transfer the authority. The past decade has been a period of rapid change in Central and Eastern Europe. Almost all of these countries have either passed entirely new constitutions or substantially modified the old ones. This is a unique situation in which constitutional delegation of powers can be performed almost simultaneously with post-constitutional delegation. The constitutional process in Israel is very different. It has been underway for fifty years. However, it can also be characterized by simultaneous constitutional and post-constitutional choices. In this paper, we examine such delegation choices in nine countries. We describe the main differences among these countries with regard to delegation of power, try to trace their origins and analyze their effects on delegation of powers. One question raised is what are the ramifications of a quasi-simultaneous constitutional and post-constitutional choice? Have constitutional rules been chosen in anticipation of the necessary compatibility with the rules of international organizations that one wants to join? Has membership in international organizations led to a boost in credibility of those governments concerned? (shrink)

The identification of courts as “open” and “public” institutions is commonplace in national and transnational conventions. But even as those attributes are taken for granted, the privatization of adjudication is underway. This Article explores how—during the last few centuries—public procedures came to be one of the attributes defining certain decision-making institutions as “courts.” The political and theoretical predicates for such practices can be found in the work of Jeremy Bentham, a major proponent of what he termed “publicity,” a practice he (...) commended by detailing the architecture for various entities—from the Panopticon for prisoners to the Parliament for legislators and courts for judges. Bentham argued the utility of publicity in enhancing accuracy, public education, and judicial discipline. Moving forward in time, I examine various contemporary techniques in several jurisdictions that shift the processes of adjudication toward privatization. Included are the devolving adjudication to less-public government entities such as administrative agencies; outsourcing to private providers; and reconfiguring the processes of courts to render them more oriented toward settlement. For those appreciative of the role courts play in developing and protecting human rights, these new practices are problematic because adjudication can itself be a site offering opportunities to engage in democratic practices. The odd etiquette entailed in public adjudication under democratic legal regimes imposes obligations on government and disputants to treat each other—before an observant and often times critical public—as equals. Public and private power can be constrained by such performative requirements. When decision making takes place in public, the application of law to fact can engender normative contestation predicated on popular input. This claim of public adjudication’s democratic potential and utilities is, however, not an argument that the judgments provided and the norms developed will necessarily advance a shared view of the public welfare. Hence, while eager to re-engage Bentham, I offer different claims for publicity and less optimism about its consequences. (shrink)

The Americans With Disabilities Act (ADA) promotes social justice by protecting disabled persons from discrimination and prejudice. It seeks equality of opportunity for them and protects their well being by giving them fair access to goods, services and benefits. These rights are circumscribed in the ADA, however, by constraints of cost, efficiency, utility, and certain social mores. The ADA offers little direction about how to set priorities when these values come into conflict, or about whether equality of opportunity favors equivalent (...) or preferential treatment for disadvantaged people. Until these ambiguities and potential value conflicts are resolved, a central moral and social problem remains unresolved: How can we demonstrate commitment to the rights and welfare of those with severe disabilities while placing fair limits upon their claims? Five special concerns are discussed: (1) eligibility and the allocation of health care; (2) the meaning of ‘qualified but disabled’ in employing people with mental disabilities; (3) equal opportunity and problems of envy and malingering; (4) ADA accommodation and public protection through testing and licensure; and (5) ADA protection and problems of backlash. Rather than simply wait to see what courts and administrative agencies decide, we should evaluate the moral conflicts, articulate criteria, and help make some difficult choices on morally defensible grounds. Keywords: disabled, health benefit plans, health care rationing, health care reform, health priorities, health services accessibility, Oregon, Rawls, selection bias, social justice CiteULike Connotea Del.icio.us What's this? (shrink)

In January 2018, the Trump administration established the Conscience and Religious Freedom Division within the Department of Health and Human Services’ Office of Civil Rights with the explicit goal of intensifying legal protection of religious and conscience objections in health care. The establishment of OCR’s new division illustrates the significant powers of administrative agencies to mold the substance of law without seeking legislative action. The mere formation of a division dedicated to protecting conscience rights is already having a (...) significant impact; it is causing health care entities, including hospitals, research organizations, and clinics, to change policies and practices to comply with the declared enforcement strategy. Administrative agencies also shape the law in what they decide not to pursue. For example, OCR has suspended enforcement of the Affordable Care Act prohibition against gender‐identity discrimination. (shrink)

Theory argues that rights-based judicial review fails because it does not have popular support. However, examining actual events in battles over freedom of speech, privacy and civil rights demonstrates that this theory often fails when applied. Those arrested during the First World War in America often only received redress through administrative agencies. Civil rights protestors' experiences prove that the federal courts were the only ones generally to protect their rights, and that the legislatures failed to act. Similarly, judicial (...) review increased the freedom of the press during the 1960s, which in turn boosted the civil rights movement. Finally, it was the courts which helped Americans to realize their right to privacy. Included in that right to privacy was the right for people to marry regardless of their race. Overall, courts and administrative agencies, particularly at the federal level, do a better job at protecting rights than legislatures. (shrink)