Research Handbooks in Comparative Law series
Edited by Susan Rose-Ackerman and Peter L. Lindseth
Chapter 22: Administrative Agencies as Creators of Administrative Law Norms: Evidence from the UK, France and Sweden
Dorit Rubinstein Reiss Administrative agencies are central sources of administrative law norms. Agencies are not just the recipients of legal norms; they are also important, sophisticated actors that create norms that are later accepted and adopted by other actors. To illustrate this claim, this chapter focuses on an important comparative case: the development of norms of transparency and consultation by the agencies regulating telecommunications and electricity in England, France and Sweden.1 These norms bear some resemblance to notice and comment rulemaking procedures under the United States’ Administrative Procedures Act,2 but with a national flavor that supports Dominique Custos’s discussion of Americanization in Chapter 17 of this volume. 1. Theoretical background The copious literature on administrative procedures and their effects generally treats agencies as subject to procedures, that is, as recipients and not actors in setting the administrative law norms that apply to them (e.g. Galligan 1996, Lubbers 2008). Political scientists make the same assumption: they treat procedures as something imposed on agencies, not something agencies help to develop (e.g. McCubbins et al. 1987, Moe 1989, Majone 1999, Spence 1999). American studies that treat agencies as independent actors in relation to their regulatory framework tend to focus on agencies’ violations of administrative law norms, (Halliday 2004, Hickman 2007, Noah 2008) or on choices between preexisting frameworks – for example, choosing between rulemaking and adjudication (Citron 2008). In contrast, public administration scholars know full well that agencies and bureaucrats play an important role in determining the statutes under which they make policy...
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