본문 바로가기
  • Home

A Study of the distinct problem between order and rule in U.S. administrative law system

  • Public Land Law Review
  • Abbr : KPLLR
  • 2015, 69(), pp.151-183
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law

황의관 1

1한성대학교

Accredited

ABSTRACT

There are significant issues that classify administrative action according to the attributions of their nature in administrative law theory and legislation. There are so much differences between the individualized, concreted agency determination and the generalized, abstracted agency determination in the legal effect and the litigation instrument. As a threshold matter, the U.S. Constitution’s guarantee of procedural due process applies to administrative agencies only when they adjudicate. So it is important problem that distinguish between agency rulemaking and adjudication process. This central principle of administrative law is to be found in two decisions by the United States Supreme Court early in the twentieth century-Londoner v. City and County of Denver and Bi-Metallic Investment Co. v. State Board of Equalization. The purpose of this article is to research and analyze the criteria for distinguishing between agency rule and order at those case’s opinions. This article is also to review the current administrative theory and judicial opinions that relate to the standard of distinct for between administrative act and administrative legislative instrument. First of all, this paper researches the APA’s definitions of rule and order, reviews the problem that those APA’s provision has. Additionally, this paper researches the Fifth and Fourteenth Amendments to the United States Constitution, so called due process clause, analyze the scope of those clauses’s application. Secondly, this article studies the Court’s opinion founded at Londoner/Bi-Metallic cases and analyzes the meaning of Court’s criteria, clarifies the standard’s elements and the nature of those factors. And this article researches another theory and judicial opinion related to the standard of distinct for distinguishing between agency rulemaking and adjudication. Finally, with the results of stated studies and analysis, this paper reviews the administrative law theory of the standard of distinct for distinguishing between administrative act(i.e. current legal term ‘disposition’) and administrative rule. Through this reviewing process, this paper identifies the blank space of the current existing theory and judicial precedent and makes up for those gabs.

Citation status

* References for papers published after 2022 are currently being built.