right of contestation have existed since ancient Greek times, no one has attempted .... 8 THE FEDERALIST 10, at 41-44 (James Madison) (Jim Manis, ed., ... Hence it is that such democracies have ever been spectacles of turbulence and ..... Roman republican theory to Roman and Greek thought) [hereinafter âPettit, Termsâ].
Ph.D. Thesis
Administrative Litigation from the Perspective of the Democratic Right of Contestation: A Comparative Study Graduate School of Yeungnam University Department of Public Law Major in Constitutional & Administrative Law
Troy C. Fuhriman
Co-Advisors: Taehuan Keum & Jin Soo Rhee
October 2018
Ph.D. Thesis
Administrative Litigation from the Perspective of the Democratic Right of Contestation: A Comparative Study Co-Advisors: Taehuan Keum & Jin Soo Rhee
Presented as Ph.D. Thesis
October 2018
Graduate School of Yeungnam University
Department of Public Law Major in Constitutional and Administrative Law
Troy C. Fuhriman
Acknowledgments
I cannot thank enough my dear wife, Shirley, for her never-ending encouragement and loving support through countless personal and professional challenges over the course of this Ph.D. program. I dedicate this work and all of my life’s work to her. I thank our children, Dyani, Bruce and Ruby, for their love, support, inspiration and big hugs. In particular, I must acknowledge Dyani’s assistance in helping me translate many complicated legal texts from Korean to English (and vice versa) for my Ph.D. coursework and this research. I also thank my parents for their support and technical editing work. I must acknowledge the influence and inspiration of Dr. David Bohn, my great mentor during my undergraduate studies in the 1990s at Brigham Young University. He stoked my interest in theories of human freedom and how they intersect with the real world – the very essence of this work. Although I have not interacted with him directly for some time, I could hear his wit and wisdom echoing in my mind throughout my research and writing of this work. I also extend my thanks to my colleagues at Kyungpook National University, especially Professor Zin Wan Park, who enthusiastically facilitated my entering this program and encouraged me as only a true friend would. I also appreciate the support of my good friends and former colleagues at the Export-Import Bank of the United States, Jesse Law, Natalie McGarry, Basel Alloush and Michael Ding, who, in early 2018, encouraged me to move beyond federal government service and finish this study. I further acknowledge the direction, support and friendship of my kind and wise guide, Professor Taehuan Keum. His firm but needed criticism and insights are much appreciated. I also thank Professor Jin Soo Rhee for stepping in and seeing this effort across the finish line. Finally, to all of my Ph.D. committee members, I extend my gratitude for your patience while you helped me improve and complete this work.
October 2018
Troy C. Fuhriman
Table of Contents Chapter 1. A. B. 1. i. ii. iii. iv. 2. C. D. 1. 2. i. ii. E. F. Chapter 2. A. 1. 2. 3. i. ii. iii. 4. B. 1. 2. i. ii. 3. 4. C. 1. i.
Introduction. Opening Context. The Nexus of the Democratic Right of Contestation to Administrative Litigation. Defining the Field: Contestation as a Republican Hedge for Democracy. Democracy. Republicanism & Liberalism: Different Conceptions of Liberty. The Democratic Right of Contestation. Administrative Litigation. The Constitutional & Administrative Litigation Context. Purpose of this Study. Selection of Jurisdictions with Issues of Focus. Jurisdictions in Focus: Korea and the United States. Key Comparative Jurisdictions. Germany. England. The Significance of the Study. Objectives and Methodology of Research. The Normative Framework of the Democratic Right of Contestation. Foundational Theory: From Plato to Pettit. Historical Roots of Contestation within Western Philosophy. Contestation Rights within Current Theoretical Camps. The Right of Contestation Applied to Administrative Litigation. Symbiosis of Contestation and Constitutional Constraints. Preconditions to Democratic Accountability. Distillation of the Implementing Criteria. Kumm: Judicial Review is a Critical Manifestation of the Right of Contestation. The Right of Contestation in the Context of Related Norms. Overlap with Theories of Good Law & Government. The Theory of Contestation and the Rule of Law. The Origins and Expansion of the Rule of Law. The Rule of Law within the Empire-of-Laws Condition. Relationship of the Theory of Contestation with Due Process. Dispersion and the Separation of Powers. Democratic Right of Contestation: Implementation in Administrative Litigation Systems. Access to Review in the Contestation Forum. Systemic Access to Substantive Justice.
1 3 12 12 13 17 20 21 22 28 31 31 33 33 36 38 40 46 46 46 52 55 55 61 65 67 70 70 71 71 77 81 86 95 96 97
ii. 2. i. ii. iii. Chapter 3. A. B. 1. 2. i. ii. iii. iv. C. 1. i. ii. iii. iv. 2. 3. Chapter 4. A. B. 1. 2. i. ii. iii. iv. C. 1. 2. 3. i. ii. 4. Chapter 5.
Procedural Access to Justice. Adequacy of Treatment in the Contestation Forum. Judicial Independence. Procedural Fairness. Adequacy of Administrative Litigation Remedies.
102 107 107 125 127
The Democratic Right of Contestation in American Administrative Litigation. Scope of this Chapter. Basic Analysis. The American Environment for Administrative Litigation. Implementing Criteria in the USA. Access to Review in the Contestation Forum. Judicial Independence. Procedural Fairness. Adequacy of Remedies. Procedural Limits on Judicial Review. America’s Un-republican Chevron Doctrine. Key Pre-Chevron Laws. Chevron Two Step Injustice. Adding a Step Zero: United States v. Mead Corp. Brand X Subjugates Court Precedent to Agency Opinions. Chevron and Brand X: Abhorrent to Contestation Rights. To Salvage or Reverse the Chevron Doctrine?
136 136 137 138 139 139 142 148 150 153 155 159 161 163 166 167 175
The Democratic Right of Contestation in Korean Administrative Litigation. 180 Scope of this Chapter. 180 Basic Analysis. 180 The Environment in Korea for Administrative Litigation. 182 Implementing Criteria in Korea. 185 Access to Review in the Contestation Forum. 185 Judicial Independence. 188 Procedural Fairness. 205 Adequacy of Remedies. 206 Remedial Issues within Korean Judicial Review. 206 Remedial Standards. 207 Korea Has Both Strong but Limited Remedies. 209 Korea Has Considered but not Implemented Reform. 214 Attempts at Remedial Reform. 215 Objections to Remedial Reform. 217 The ALA Amendment Process Needs to Move Forward. 234 Conclusion.
238
References.
242
Table of Legal Authorities.
257
Chapter 1.
Introduction.
The democratic right of contestation, as it has been described within republican legal and political theory provides an essential lens through which the functioning of the modern state can and should be viewed. That lens focuses on how contestation plays a central role in protecting the allimportant liberty interests of individuals. Although the theories underlying the right of contestation have existed since ancient Greek times, no one has attempted to distill such theory and apply it to a vital function of the modern administrative state: administrative litigation. This is astonishing yet not unexpected, as political philosophers and those who deal with the nuts and bolts of administrative court matters seldom meet. Additionally, republican legal theory has been “largely unexplored” until relatively recently.1 Indeed, studies developing a republican theory of law are relatively new, with the field only having been seriously developed since republican political theories were applied to criminal justice by leading republican legal theorist John Braithwaite and the dominant republican political theorist Philip Pettit in 1990.2
Samantha Besson & José Luis Martí, Law and Republicanism: Mapping the Issues, LEGAL REPUBLICANISM: NATIONAL AND INTERNATIONAL PERSPECTIVES 3, 6 (Samantha Besson & José Luis Martí, eds., Oxford University Press 2009). Given that political republicanism has been a field for thousands of years and legal republicanism has only come into its own for less than thirty years, legal republicanism is a field that has many areas still yet to be explored. 2 Id. (referring to “Braithwaite and Pettit’s seminal work about criminal justice” as the “most crucial for the development of a republican theory of law.”). 1
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This study will build upon, and bridge, the work done by both those who have developed the political and legal theories underpinning the democratic right of contestation, primarily from a republican theoretical point of view, and those who have analyzed the roles and functions of administrative litigation in the modern democratic state. We will see that it is possible to distill key elements from the republican theory of democratic contestation and use such elements as both aspirational guides and measuring sticks for realworld administrative litigation systems, regardless of whether they are based in old or new democracies, Eastern or Western civilizations, or common law or civil law legal systems. This is demonstrated with a theoretical discussion tied to the analysis of real-world jurisdictions, particularly those of the United States of America and the Republic of Korea (“Korea”). Ultimately, this study will aid in the ongoing work of legal and republican scholars to “identify the impact of republican values” on particular issue, namely (1) the theoretical understanding of the laws pertaining to administrative litigation; (2) the content of laws related to administrative litigation; (3) “the form and structure of laws in general”; and (4) concrete legal and political institutions, particularly those involved in the contestation processes of administrative litigation.3 Ultimately, this study will identify the legal and republican political conception of democracy and link it to concrete legal and 3 See id. at 6-7 (identifying issues that need to be further explored in legal republicanism in order to, inter alia, link the work of philosophers with the work of legal scholars who too often “ground their institutional analysis on insufficient theoretical and normative foundations”).
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institutional aspects of administrative litigation via an analysis centered on the republican theory-derived democratic right of contestation. A.
Opening Context.
In 1789,4 the United States of America instituted a constitutional system of government under law based on fundamental theories of democracy, republicanism and broader Western traditions of political philosophy, ranging from Socrates to Locke.5 Notably, at the foundation of such system is the foundational principle of democracy – the right to vote. For “[w]ithin a democracy, … [t]he power to govern derives directly from the votes of the electors … [and] from their continuing willingness to be governed by the elected government.”6 They also created a broader framework that recognizes the frailty of democracy and that sought to bolster it with robust republican
4 The Constitutional Convention met in 1787 but the Constitution was not ratified until 1789. Office of the Historian, United States Department of State, Constitutional Convention and Ratification, 1787-1789, https://history.state.gov/milestones/1784-1800/convention-and-ratification (last visited Sept. 28, 2018). 5 Classical Greek philosophers, as well as Locke and other Enlightenment philosophers, were studied extensively by, and are commonly known to have been massively influential on, the ideas on governing embraced by the American Founders, particularly the three leading minds of the then-nascent republic: 1. Thomas Jefferson, who wrote the Declaration of Independence; 2. John Adams, who wrote the 1780 Constitution of the Commonwealth of Massachusetts (the oldest functioning written constitution in the world today), which served as the model for the American Constitution); and 3. James Madison, who was the primary author of the federal American Constitution and was central to drafting the Bill of Rights. Commonwealth of Massachusetts, John Adams & the Massachusetts Constitution, https://www.mass.gov/guides/john-adams-themassachusetts-constitution (last visited Sept. 30, 2018); James Madison’s Montpelier, The Life of James Madison, https://www.montpelier.org/learn/the-life-of-jamesmadison?gclid=Cj0KCQjwrszdBRDWARIsAEEYhrdBgAu8Fl7BqjOD6V1uoEbufb63QOmaD ThRnMKgXMfeNies6Qv5kh8aApXOEALw_wcB (last visited October 2, 2018). 6 A W Bradley & K D Ewing, CONSTITUTIONAL AND ADMINISTRATIVE LAW 107 (14th ed. Pearson Longman 2007).
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features, including the right to engage with and challenge the government itself. The Framers of the Constitution of the United States (the “American Constitution”) of course created a democratic republic that now holds the individual’s right to vote sacrosanct. In doing so, they did recognize that democracy in its thinnest sense does, like other forms of government, tend to accumulate power in the same hands and lurch towards tyranny.7 They knew, based upon theory and experience, that the right to vote alone does not protect the individual’s rights nor make the laws propagated by a system of government legitimate. There must be structures built around the foundational democratic right – the vote – in order to preserve the liberty of the people, ensure the stability of the state and bestow legitimacy upon the government that makes and implements laws. The Framers of the American Constitution created a complex system that was explicitly designed to counteract the tendencies of democracies towards both tyranny of the majority and instability.8 They attacked these twin evils of thin democracy by constructing a novelty in its time: a constitutional republic – a system that marries democratically elected representation with THE FEDERALIST NO. 47, at 216 (James Madison) (Jim Manis, ed., Pennsylvania State University 2001). 8 THE FEDERALIST 10, at 41-44 (James Madison) (Jim Manis, ed., Pennsylvania State University 2001) (In a “pure democracy … [a] common passion or interest will, in almost every case, be felt by a majority of the whole … and there is nothing to check the inducements to sacrifice the weaker party.... Hence it is that such democracies have ever been spectacles of turbulence and contention….”). 7
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constitutional safeguards for minority groups and individual rights using various constructs,9 including mechanisms that both protect and implement the right to contest the use of power by the state. As part of that constitutional experiment, separate branches of government – legislative, executive and judicial – were instituted to diffuse power and provide different avenues through which the citizenry could contest the actions of the government. Indeed, inherent within the American Constitution are various avenues of democratic contestation against the state – ranging from the First Amendment rights “peaceably to assemble” (implying, inter alia, the right to protest) and “to petition the Government for a redress of grievances”10 to the many rights that criminal defendants can use to challenge state action as found in the Fourth11, Fifth12, Sixth13 and Eighth14 Amendments.
For example, Madison notes that the substantial number of factions in a large republic can undermine the tendency towards the tyranny that is more likely to be found in small society. Id. at 46. He further notes that the separation and partial mixing of powers between branches of government created under the American Constitution are supported by experience under state constitutions. THE FEDERALIST 47 (James Madison). 10 U.S. CONST. amend. I. These examples are used to demonstrate the link between enumerated constitutional rights, such as the rights to petition or peaceably assemble, which provide for people to engage in manifestations of the broader democratic right of contestation, and thus contestation rights. 11 U.S. CONST. amend. IV (protecting “[t]he right of the people … against unreasonable searches and seizures” and setting forth warrant requirements.). 12 U.S. CONST. amend. V (protecting individual rights by requiring grand jury indictments for persons to be charged with a crime, prohibiting double jeopardy, prohibiting forced selfincrimination, requiring due process of law before the state can deprive any person of life, liberty or property.). 13 U.S. CONST. amend. VI (providing for criminal defendant rights, including the rights to a speedy trial, an impartial jury and legal counsel). 14 U.S. CONST. amend. VIII (prohibiting excessive bail, excessive fines and “cruel and unusual punishments”.). 9
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The Framers of the American Constitution could not have envisioned the breadth and power of the modern administrative state, as well as its potential for positive and negative impact on the liberties of individuals. Additionally, they could not have imagined how the apparatus of such administrative state would interface with the branches of government they created, as well as the human rights they wrote into their basic law. So, the rise of the administrative state in the United States has posed an interesting challenge to a system built before it existed – how to meld the foundational principles and structures of the American republic with a sprawling bureaucratic state. It has not been an easy endeavor. Indeed, the melding process is still an incomplete experiment. In contrast with the United States, Korea created a modern democratic constitutional order on top of an existing authoritarian-bureaucratic state with the establishment of its 1987 constitutional democratic republican order.15 After achieving independence from Japan and before the democratic reforms of the late 1980s, Korea did have a written constitution and had engaged in constitutional reforms; however, autocratic rulers and their powerful allies in the military, chaebol and the bureaucracy undermined prior reform efforts.16 During much of its modern history, Korea had its bureaucratic apparatus
It is a fact of history that the Korean bureaucratic state predated the 1987 constitution. Pyung Shin, Recent Discussions on the Constitutional Law Amendment of South Korea 2-4 (December 9, 2012 draft) (unpublished manuscript). 15 16
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fashioned to serve Japanese colonialists17 or later indigenous authoritarians. Both groups had every reason to mistrust, and undermine the liberty of, the people while ultimately engaging in “efficient” governmental practices18 that were likely to be arbitrary and oppressive. An administrator’s concern was more likely to be for the welfare of the state than for the freedom, rights and dignity of the Korean people. Since 1987, a current flowing within the democratization of Korea has been, and still needs to be, the ongoing effort to 17 Japan colonized Korea from 1910 through the end of World War II in 1945 and sowed the seeds of a massive bureaucratic state meant to serve the needs of the colonial master. The bureaucracy grew from about 10,000 employees in 1910 to over 87,000 thousand colonial bureaucrats by 1937, including 35,282 Koreans. Broader “private” and military bureaucracies were created that brought the total bureaucrat numbers to about 246,000 Japanese and 63,000 Koreans working to serve the Japanese Empire. In comparison, France ruled Vietnam, a colony of 17 million people, with only 2,920 personnel. Carter J. Eckert et al., KOREA OLD AND NEW: A HISTORY 257 (Ilchokak, Publishers 1990). Japan’s implanted colonial bureaucratic order “shattered the foundation” of Korea’s “remarkably stable nineteenth-century bureaucratic agrarian society and unleashed, new forces in conflict with old and with each other.” Id. at 327. In the post-colonial and post-Korean civil war authoritarian era of the 1950s and beyond, President Rhee used the government bureaucracy, which still “suffered the taint of colonial collaboration”, and the national police to cement his power. Id. at 350. Throughout the remaining pre-1987 history and despite many efforts at restructuring and even shrinking the administrative state, the bureaucracy continued to grow and be used as a tool to strengthen the government’s grip on the economy and other levers of power. See Pan Suk Kim, South Korea: Searching for a New Direction of Administrative Reform, 55 AUSTRALIAN J. PUB. ADMIN. 30, 36 (1996) (detailing administrative reorganization and reform efforts in Korea from 1948 through 1994). Such pre-democratization uses of the administrative state contrast with the efforts in the 1990s and beyond to reform the administrative state in “regime-level politics” meant to go beyond typically discussed good government public administration reforms, such as focusing on responsiveness or efficiency, and actually seek to fit the administrative apparatus “to the political configuration of the regime” – a democratic regime – in at least a symbolic manner. Id. at 38. 18 While efficiency in public administration should be encouraged and, indeed, it is one of the “three E’s” or three pillars of public administration (Kristen Norman-Major, Balancing the Four Es; or Can We Achieve Equity for Social Equity in Public Administration?, 17 J. PUB. AFFAIRS ED. 233, 234 (2011)), an over-emphasis on efficiency can be used as an excuse for neglecting the rights of the people. Troy Fuhriman, Social Equity: Adaptation of Social Justice from Law to Policy in American Public Administration, 28 STUDY AM. CONST. 297, 322 (2017) (noting how efficiency and values-neutral public administration was used as a basis for American public administrators to engage in racial discrimination in the mid-twentieth-century). Indeed, one of the great hallmarks of a dictatorship is an over-emphasis of bureaucratic efficiency. Such efficiency is often used as an excuse to trample on basic rights of the people. As U.S. President Harry Truman noted, “When you have an efficient government, you have a dictatorship.” Harry S. Truman Quotes, http://www.quoteauthors.com/harry-s-truman-quotes/ (last visited May 27, 2018).
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reform the administrative apparatus of state in order to make civil servants responsive to democratically elected public officials and seek to support the liberty and rights of the people, even in mundane administrative matters. Ultimately, the challenge of a democratic Korea has been the reverse of that in the United States: Instead of placing an administrative state on top of a democratic republic, Korea has tried to place a democratic republic on top of an administrative state. Regardless of such differences, the same fundamental questions arise: How can the principles of an expansive and vigorous type of democracy be used to control the potentially oppressive tendencies of any administrative state? In other words, how can we guarantee the liberty of the people while allowing the necessary functions of the administrative state to be carried on? Korea has turned to “a largely American-inspired constitutional framework, replete with separation of powers and an extensive list of civil [and human] rights”19 to be protected by, and from, the state. Therein lies the quandary of both the American and Korean constitutional orders: The state is charged with protecting the rights of the people from the arbitrary or otherwise oppressive actions of the state! How can this be done? According to certain theorists, most notably republican political philosopher Pettit and law professor Mattias Kumm, who typically adheres more closely to 19 Troy Fuhriman, Who Decides? The Rule of Law, Constitutional Structures and the Judiciary in the United Kingdom, the United States, China and South Korea, 41 KYUNGPOOK NAT’L U. L.J. 557, 598 (2013).
8
liberalism than republicanism, the answer lies in part in ensuring that the twin engines of democracy, the individual’s rights of voting and democratic contestation, are respected and implemented.20 As Kumm notes, The right to contest public authorities that impose burdens on the individual is as basic an institutional commitment underlying liberal-democratic constitutionalism as an equal right to vote.21 Pettit posits that government agents, even “perfectly public-spirited agents, can make coercive decisions on an arbitrary basis” and thus “dominate[] … citizens.”22 In order to guard against such possibilities, the people must have access to two levers of democracy. First, the right to vote must be broadly granted, respected and protected – this is a non-controversial tenet of all modern democratic systems. Second, governments must recognize that See Philip Pettit, REPUBLICANISM: A THEORY OF FREEDOM AND GOVERNMENT 186 (Oxford University Press 1997) [hereinafter “Pettit, Republicanism”] (noting that consent and contestation are necessary for the preservation of self-rule of the people); see also Mattias Kumm, The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-Based Proportionality Review, 4 LAW & ETHICS HUM. RTS. 140, 170 (2010) [hereinafter “Kumm, Justification”]. 21 Id. 22 Pettit, Republicanism, note 20, at 171-72. “Domination” as used in this context has a special meaning, as used in modern republican or neo-republican theory. Michael J. Thompson has characterized Pettit’s conception of domination thus: 20
[D]omination is the condition of living under the mastery of some other’s will. The paradigm is therefore that of master and servant, of as kind of control that one has over another that is conscious, intentional to some degree, and coercive in the sense that the person being dominated exercises his choices only cum permissu of the dominator: Michael J. Thompson, The Two Faces of Domination in Republican Political Theory, 17 EUROPEAN J. POL. THEORY 44, 45-6 (2018). Notably, Thompson finds Pettit’s conception of domination too constricting and appeals to Machiavelli and Rousseau to create a broader definition of domination reflective of “extractive domination” and “constitutive domination”. See id. at 44-56. For purposes of this study, Pettit’s conception of domination is used as the basis of analysis. However, the author recognizes that there are other conceptions of domination, just as there are differing opinions about the nature of related norms.
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constitutional constraints that provide democratic control ultimately rest on the right of the people to contest the decisions and actions of the state. It is the second right, the democratic right of contestation or “democratic contestability”23, which is often overlooked and misunderstood, that stands at the nexus of political and legal theory and the practical realization of the fruits of modern constitutional democracy for the average citizen. This study attempts to bridge the gap between the republican theory of the democratic right of contestation and a key feature used to guard such right in the real world: administrative litigation. In order to bridge this gap, this study has the following four central foci: First, it will seek to make a proper distillation of the democratic right of contestation. Second, it will identify the key elements that are necessary for individuals to realize the practical benefits intended to be the fruits of democratic contestation in the modern administrative state. Third, this study will identify practices used in the real world to implement, or hinder the implementation of, its elements in the administrative litigation context. Finally, this study will demonstrate how the criteria for proper implementation of the democratic contestation in the administrative litigation context can be applied and analyzed in two very different modern democratic states: The United States of America and the Republic of Korea. Other jurisdictions besides the United States and Korea
23
Id. at 176.
10
are mentioned and even discussed in some detail; however, they are used primarily as subjects to demonstrate the intersection of theory and practice in different systems of law and government. Ultimately, concepts discussed herein will also highlight the nexus between the democratic right of contestation and broader frameworks of national and international legal, political and administrative practices and theory. Such nexus is critical to recognize as it serves as the true testing point for both the soundness of theory and the legitimacy of practice.24 With that in mind, this study draws together the theoretical bases of the democratic right of contestation, as well as related rights, with the structures and practices implementing such rights practical and effective. This is done to demonstrate the impact that specific aspects of constitutional and administrative structures and practices have, both individually and when viewed in the aggregate, in upholding or undermining the rights of individuals who engage with the organs of the democratic state concerning such rights. Thus, it is imperative to examine both how well particular structures and practices align with theory and also how practical and effective they are at safeguarding the legal rights of citizens engaging with the state through what 24 Under the Council of Europe’s European Convention on Human Rights (“ECHR”), rights delineated in the ECHR must be made to be “practical and effective” rather than “theoretical and illusory”. Artico v. Italy, Eur. Ct. H.R., No. 6694/74 para. 33 (1980). In other words, rights must be implemented in a practical sense in order to satisfy the norms of the ECHR. This principle is not unique to Europe but is consistent with the internationally understood expectation that human rights need to be effectively operationalized by law in order to meet the theoretical and actual politically intended reasons for their existence.
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has been termed administrative litigation or judicial review of administrative decisions (herein referred to as “administrative litigation”). Or, as Judge Richard A. Posner has posited, it is necessary to get beyond the tendency to “judge specific institutions, decisions, policies, and proposals [only] by their conformity to [a specific] model” of adjudication and democracy and, instead “focus on the practical consequences of such things, with theorization used only to illuminate the consequences….”25 While much of this study will focus on theory, it will also explore the practical and pragmatic consequences on the democratic right of contestation concerning the institutions, procedures and policies examined herein. B. The Nexus of the Democratic Right of Contestation to Administrative Litigation. 1. Defining the Field: Contestation as a Republican Hedge for Democracy. The democratic right of contestation is born from republican theories of democracy that have their roots in ancient Greek republican philosophy and have been updated to meet the demands of modern legal and political theory. Modern notions of democratic contestation rest on a foundation of Western thought stretching back at least to Socrates. Indeed, Kumm refers to the root concept as “Socratic contestation”, which is “the practice of critically engaging authorities, in order to assess whether the claims they make are
25
Richard A. Posner, LAW, PRAGMATISM AND DEMOCRACY 3 (Harvard University Press 2003).
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based on good reasons.”26 This ancient notion of Socratic contestation, as elucidated in Plato’s works,27 lays at the foundation of Pettit’s republican theory-based right of contestation, which is also referred to as the right of democratic contestation and other similar terms. The right of contestation is closely linked to republican, liberal and other theories of democracy and serves as a theoretical point of linkage between law and democracy. It is so foundational to methods of Western political thinking, that it could also be seen as a vital methodology concerning both the development of all post-Socratic Western philosophy and as a tool for protecting foundational ideals of key schools of political and legal philosophy, including justice, individual self-government and even majority rule.28 Concepts that are foundational to this study, namely democracy, republicanism, contestation and administrative litigation, as well as related ideas are elucidated in the remainder of this subchapter 1.B.1. i.
Democracy.
Democracy in its thinnest common dictionary meaning is “government by the people; a form of government in which the supreme power is vested in the people and exercised directly by them or by their elected agents under a free Mattias Kumm, Institutionalising Socratic Contestation: The Rationalist Human Rights Paradigm, Legitimate Authority and the Point of Judicial Review, 1 EUR. J. LEGAL STUD. 2, 3 (2007) [hereinafter “Kumm, Legitimate Authority”]. 27 Kumm, Justification, supra note 20, at 153-157 (discussing contentions concerning the need for contestation, as typically stated in the voice of Socrates within Plato’s early works). 28 Id. at 157. 26
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electoral system.”29 Such a concept of democracy is focused on the use of the vote to either select representatives who will govern them (representative democracy) or vote directly on laws themselves (direct democracy).30 Such a thin concept of democracy avoids the broader implications of the word in modern usage. A deeper common dictionary meaning of democracy refers to “a state of society characterized by formal equality of rights and privileges.”31 Neither of those common definitions lands precisely where democracy is found in this study, as the first definition only identifies the role of democratic consent, while the latter only identifies fruits of democracy, not any of the means for obtaining such fruits (such as consent). While the essence of democracy as a concept has been debated for thousands of years, there are centrally important elements that involve collective government utilizing an equal right to vote.32 What this study is interested in is not only in identifying a “definition” of democracy, which is not fully possible, “but to determine which, if any, of the forms democracy may take are morally desirable and when and how.”33 By analyzing the forms of democracy, or more particularly justifications for
29 Dictionary.com, “Democracy”, http://www.dictionary.com/browse/democracy?s=t (last visited May 7, 2018) [hereinafter “Dictionary.com, Democracy”]. 30 See generally NEW OXFORD AMERICAN DICTIONARY, “Democracy” (Kindle ed.) (last accessed Oct. 9, 2018); see also Tom Christiano, Democracy, STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Edward N. Zalta, ed., Fall 2018 ed. 2018), https://plato.stanford.edu/cgibin/encyclopedia/archinfo.cgi?entry=democracy (last visited October 8, 2018). 31 Dictionary.com, Democracy, supra note 29. 32 Christiano, supra note 30. 33 Id.
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specific forms, one can identify elements that are desirable and thus components of a particular theoretical construct of democracy. Principal justifications include instrumental and non-instrumental arguments.34 Instrumental arguments, which are generally accepted, include the idea that democracy results in “relatively good laws and policies and improvements in the characters of the participants.”35 Non-instrumental arguments include most prominently arguments that democracy safeguards liberty and promotes equality.36 This study acknowledges that there are different common definitions, and theoretical bases for supporting, democracy. Notably, the basic conception of democracy that rests solely on the equal right to vote has been roundly criticized by historical giants of philosophy, including Plato and Thomas Hobbes. In Plato’s Republic, he criticizes democracy because experts are not put in charge of government, so results are inferior to systems that do support expertise in government, such as monarchy and oligarchy, and ultimately leads to bad laws and governance.37 Hobbes criticizes democracy because it both leads to dissension and low-quality governing outcomes, as ordinary
Id. Id. 36 Id. 37 See Plato, REPUBLIC, Book VI (Benjamin Jowett, trans.) (360 B.C.E), available at http://classics.mit.edu/Plato/republic.html. 34 35
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citizens are manipulated by politicians who seek only for power using divisive campaigning techniques while focusing little on the common good.38 Ultimately, democracy, as a normative conception used in this study, refers to a type of formal system of government that involves individuals being able to exercise the rights of consent and contestation: (1) the right to an equal vote in order to govern by majority rule, directly or indirectly; and (2) the right to contest the actions of the state.39 This model of democracy is republican in nature and is meant to both counteract the harmful elements resulting from a thinner form of democracy (that with only element (1)) and also promote the ultimate aims of the republican theory of government: positive liberty. Pettit’s republican conception of democracy is such that if a system of government can meet republican aims concerning liberty, such system can meet lower aims found in less demanding conceptions of liberty, like those embraced by modern liberal theorists, like Kumm.40 Indeed, Kumm has noted: The right to contest the acts of public authorities that impose burdens on the individual is as basic an
Thomas Hobbes, LEVIATHAN, Chapter XIX (1651), available at https://ebooks.adelaide.edu.au/h/hobbes/thomas/h68l/ (comparing democracy, aristocracy and monarchy as “commonwealths” or forms of governance, particularly concerning how well each tends to “produce the peace and security of the people; for which end they were instituted.”). 39 Pettit, Republicanism, supra note 20, at 185. 40 Kumm, like other liberal theorists, focuses principally on reducing government interference with the rights of individuals. See, e.g., Kumm, Justification, supra note 20, at 170 (arguing that justification of legislative decisions comes from the certainty that such decisions can be reasonably justified in a contestation system of judicial review). 38
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institutional commitment underlying liberal-democratic constitutionalism as an equal right to vote.41 Pettit goes a step further than the liberal Kumm, contending that the republican model of democracy “is primarily contestatory rather than consensual.”42 Thus, Pettit places contestation not on par with consent but above consent in the hierarchy of values.
Ultimately, this
republican model equates the level of democracy with the “extent that the people individually and collectively enjoy a permanent possibility of contesting what the government decides.”43 ii. Republicanism & Liberalism: Different Conceptions of Liberty. This study’s theory of democracy, which incorporates the democratic right of contestation, springs from republican political and legal theory but has also been embraced within certain liberal theory circles. 44 Given these developments, it is important to define and explore key facets of liberalism and republicanism.
Id. Pettit, Republicanism, supra note 20, at 185 (emphasis added). 43 Id. 44 Kumm, Justification, supra note 20, at 170 (citing Rainer Forst, DAS RECHT AUF RECHTFERTIGUNG (Taschenbuch 2007)). Such theory has also been embraced by Kumm and a very influential German liberal philosopher and political theorist Rainer Forst. 41 42
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Republicanism started with the ancient Greeks and was solidified in the Roman republic.45 Liberalism found its genesis in the writings of seventeenth and eighteenth-century European philosophers, notably Hobbes, John Locke, Jean-Jacques Rousseau and Immanuel Kant– all social contract theorists.46 Both philosophical schools focus on the idea that government derives its legitimacy by preserving liberty.47 However, it is their conception of liberty that serves as a central point of disagreement between the camps. Generally, Western concepts of liberty fall into three categories: 1. Positive liberty. “[P]ositive liberty is an exercise-concept. One is free merely to the degree that one has effectively determined oneself and the shape of one’s life. Such a person is not subject to compulsions, critically reflects on her ideals and so does not unreflectively follow custom, and does not ignore her long-term interests for short-term pleasures.”48 2. Negative liberty. “[T]he heart of [negative] liberty is the absence of coercion by others; consequently, the liberal state’s commitment to protecting liberty is, essentially, the job of ensuring that citizens do not coerce each other without compelling justification.”49
See Philip Pettit, ON THE PEOPLE’S TERMS: A REPUBLICAN THEORY AND MODEL OF DEMOCRACY 6-7, 17 (Cambridge University Press 2012) (linking modern republican and neoRoman republican theory to Roman and Greek thought) [hereinafter “Pettit, Terms”]. 46 Gerald Gaus et al., Liberalism, STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Edward N. Zalta, ed., Spring 2018 ed. 2018), https://plato.stanford.edu/entries/liberalism/#PosLib (last visited Oct. 8, 2019). 47 Id. 48 Id. (citations omitted). Positive liberty can be traced to Rousseau but “the positive conception was best developed by the British neo-Hegelians of the late nineteenth and early twentieth centuries, such as Thomas Hill Green and Bernard Bosanquet.” Id. 49 Id. 45
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3. Republican liberty. Republican liberty at its core is “not having to live in servitude to another: not being subject to the arbitrary power of another.”50 Liberals congregate around the first and second forms of liberty and debate amongst themselves about which is correct. Not surprisingly, republicans tend to form around the republican form of liberty. Which conception of liberty one embraces then determines how one gauges the legitimacy of government behavior. Liberalism tends to focus on what makes a government legitimate – thus its origins with social contract theorists.51 While they may disagree about the concept of liberty, what ultimately binds liberals together is their adherence to the Fundamental Liberal Principle, which holds that restrictions on liberty must be justified in order for the government imposing such limitations to be legitimate.52 While they overlap with liberals on many points, modern republicans generally start from a different fundamental viewpoint of the conception of why government exists: The purpose of government is to promote a conception of liberty as freedom from non-arbitrary power, which is really freedom from domination. “Amongst the … ideas associated with the republican tradition, the conception of freedom as non-domination is the most
Philip Pettit, Freedom as Antipower, 106 ETHICS 576, 576 (1996) [hereinafter “Pettit, Antipower”]. Gaus et al., supra note 46. 52 Id. 50 51
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distinctive.”53 It also serves as the foundation for, and is connected to values such as political equality, self-government, deliberative democracy, and civic virtues.”54 This conception of liberty as non-domination has its roots in classical Roman republican theory that breaks down humans into two categories: (1) those who are dominated (like slaves or Latin servus); and (2) those who are free (Latin liber).55 In order for one to enjoy republican liberty, one must have independence to make choices free from the will of any other person, including the government.56 As explained in the hugely influential eighteenth-century work Cato’s Letters¸ republican “Liberty is, to live upon one's own Terms; Slavery is, to live at the mere Mercy of another.”57 iii.
The Democratic Right of Contestation.
As will be briefly touched upon below and more fully explained in Chapter 2, the democratic right of contestation is meant to provide appropriately designed mechanisms to give citizens the practical opportunity to contest the decisions of their representatives and the government that serves them. The core of democratic contestation is the right to force the government to account to the relevant interests and ideas of the affected citizen.58 By providing and
Pettit, Terms, supra note 45, at 6. Besson & Martí, supra note 1, at 18. 55 Pettit, Antipower, supra note 50, at 576. 56 Id. 57 2 CATO'S LETTERS 249 (John Trenchard & Thomas Gordon, eds., 6th ed. Da Capo 1971) (capitalization as in original). 58 Pettit, Republicanism, supra note 20, at 185. 53 54
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implementing such a right, discretionary use of government power should be able to be controlled in a manner that provides room for liberty to be “secured and the threat of domination put aside.”59 Unlike the right to vote, which is individual in nature but only exercised in the collective sense, the right to contestation is individual in nature and may also be exercised in an individual sense. It is with such right that the individual engages the top political leadership, individually, or, at the election of the individual, with other individuals. Manifestations of the democratic right of contestation include the right to protest in the streets, proposing changes to legislation, appealing administrative actions60 or suing for the protection of constitutional rights. All of these forms of engagement are practical applications of the democratic right of contestation and provide individuals with the right to interface with and contest the decisions of senior political leaders. iv.
Administrative Litigation.
Administrative litigation refers to an action brought in court to settle a dispute in which at least one of the parties is a public authority, litigation having as its object the violation of a person's right or a legitimate interest by an administrative act or Besson & Martí, supra note 1, at 18. Unless otherwise noted, “administrative actions”, or similar terms, such as “administrative acts” used herein shall be used in accordance with longstanding meaning of such term to “include within its meaning investigations, findings, orders, regulations, rules, opinions and any other form of conduct of administrative agencies.” James J. Kearney, Problem of De Novo Judicial Review of Administrative Action, 14 NOTRE DAME L. REV. 233, 234 (1939). 59 60
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by the failure to resolve within a legal term an application.61 This concept is commonly used in non-common law jurisdictions, such as those of continental Europe, China, Japan and Korea.62 The term “administrative litigation” is mostly foreign to the common law attorneys and scholars, since common law systems historically have not engaged in the classification of laws or legal systems along the lines of, for example, a public law vs. private law division.63 Furthermore, they did not break down administrative law or administrative litigation as systematically separate in the same way as civil law jurisdictions. Regardless of the lack of usage of the term administrative litigation in common law systems, for purposes of this study, “administrative litigation” applies equally to lawsuits involving private parties against the state in common law and civil law jurisdictions studied herein. 2. The Constitutional & Administrative Litigation Context.
Cătălin-Silviu Săraru, Administrative Litigation Systems in Europe, 7 JURIDICAL TRIB. 227, 227 (Jun. 2017). 62 To test the prevalence of the term “administrative litigation” in American law practice and scholarship, the author searched “administrative litigation” as a title subject in the American law reviews and journals on Lexis-Nexis on October 7, 2018, and found only eleven responsive articles. Of those, five relate to the People’s Republic of China, one relates to Japan and the other five use the phrase in a generic sense of litigation against some aspect of the administrative state in the United States. 63 See Săraru, supra note 61, at 232 (discussing the unique aspects of the administrative litigation system in the United Kingdom). 61
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The most commonly recognized form of interaction between a democratic state and the citizen is at the ballot box. However, such interaction is not necessarily the most common or even most important interaction between the citizen and the democratic state. For many, their most important interaction might occur at places like the motor vehicles department, the public school, the social security office, the business licensing authority or at a host of countless other government departments and agencies.64 At any such government office, the individual citizen may find that the state is improperly impinging his or her fundamental rights or even simple legal rights. Indeed, government authorities that ordinary people interact with have the power to interfere with and undermine such people’s rights under the law in a variety of settings. It is not uncommon for a bureaucrat to properly or improperly utilize his or her private opinion as a basis for granting or denying the rights of the citizenry. Constitutional constructs, such as constitutional diffusion of powers, the rule of law, due process and democratic contestation, stand as Indeed, many citizens choose not to vote at all but very few avoid engaging the government in one or more of the ways listed in this sentence. In Korea, presidential election voter turnout has ranged from 63 to 81.9% from 1992 until 2017. Statista, Voter Turnout in Presidential Elections in South Korea from 1992 to 2017, https://www.statista.com/statistics/704937/south-koreapresidential-election-turnout/ (last visited Oct. 2, 2018). Even with such relatively high voter turnout numbers, anywhere from approximately 1 out of 5 to 1 out of 3 eligible Korean voters do not exercise the right to vote for president. The numbers are much lower for non-presidential elections. See, e.g., S. Korea’s Voter Turnout Highest in 16 Years, KOR. TIMES (Jun. 4, 2014), http://www.koreatimesus.com/s-koreas-preliminary-voter-turnout-hits-record-high-in-16-years/ (last visited Oct. 2, 2018) (noting that “[m]ore than 23.4 million out of over 41.2 million eligible voters went to polling stations across the country…”; meaning that about one-half of all eligible voters failed to vote). In the USA, the voter turnout numbers are much worse. See, e.g., Jennifer Um, A Growing Concern for Voter Turnout in the US, KOR. TIMES (Aug. 10, 2015), http://www.koreatimesus.com/a-growing-concern-for-voter-turnout-in-the-us/ (last visited Oct. 2, 2018) (noting that only 36 percent of the eligible American voters voted in 2014). 64
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bulwarks against the arbitrary exercise of power by bureaucrats and their resultant domination of the people. Modern democratic republican constitutions have two primary functions. First, they establish the relationship between the various organs of state with each other. Second, they delineate the relationship between the people (and their institutions within civil society) and the state: Such relationship is typically further delineated by, inter alia, (1) establishing limitations on the state to impinge on civil and political rights in formal recognition of “negative rights,” (2) providing additional social, cultural, economic or political claims that the people can make on the state – so-called “positive rights,”65 and (3) interrelatedly with the two previous items, providing mechanisms whereby the people may interface with and challenge the organs of state. Ultimately, in a democratic republic, a key factor that leads to the assurance of the ordinary citizenry’s enjoyment of the constitutional and lower legal rights is “not so much consent as contestability.”66 If the only basis for interaction with the state happened to be the right to vote, most citizens would never be able to enjoy full realization of their rights. Indeed, it is only by compulsion of law or even force under the law that many government actors, even in a democracy, can be made to do their jobs in a
Maurice Cranston, Text—Human Rights, Real and Supposed, PHILOSOPHY OF HUMAN RIGHTS 163 (Patrick Hayden, ed., Paragon House 2001) (delineating the distinction between negative and positive rights). 66 Pettit, Republicanism, supra note 20, at 185. 65
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manner consistent with the law and broader rights of the people. Such force may come upon an individual civil servant in the form of discipline within a civil service regime – for example, a derelict government employee may be subject to reprimand, non-promotion or even termination of employment. In most bureaucracies, including those of the United States, such penalties are rarely used and are hardly effective in constraining the “civil service mentality”67. So, what can be done to control the administrative state, both government agencies and the public employees who comprise them, to ensure that its acts are not arbitrary or otherwise made in a manner that will dominate the people? Especially when we consider that, in a democratic republic, the ordinary
The issue of constraining the “civil service mentality” has long vexed public administration scholars. See, e.g., Herman Finer, The Civil Service and the Modern State: Discipline and Rights, 7 PUBLIC ADMIN. 317 (1929) (discussing the differences between tools available to employers in private industry, which “are well known and may be violent”, and the public sector, where the “blunt edge of industrial discipline” is lacking due to the “non-competitive, sheltered nature of public services….”). For a comparative study of European public administration and recruitment in the late 19th and early 20th centuries, see Herman Finer, The Civil Service in the Modern State, 19 AM. POL. SCI. REV. 277 (1925). Notably, public administration has been analyzed and supposedly reformed under various schools of theory over the past century. Nevertheless, the fundamental “civil service mentality” still pervades bureaucracies and makes the civil servants working within them difficult to direct and control as necessary to ensure that they will act in a manner that is not arbitrary. While acting as the general counsel of the Export-Import Bank of the United States (20172018), a government corporation structured as an independent agency of the United States federal government, the author had the opportunity to view the abject ineffectiveness of using the civil service disciplinary system in the United States government. Employees could engage in various forms of misconduct, including skipping out on work, acting belligerently towards citizens or other employees, and even engaging in illegal behavior, with little more than receiving a slap on the wrist and, at times, even receiving promotions or payouts to help move them along. Compared with the private sector, such a system of protections hardly provides a means for guaranteeing that employees interact with their “customers” – the American people – with respect and according to the law. 67
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citizens should dominate the state, not the other way around.68 “[E]stablished institutional ideals like the rule of law, the separation of powers, and democratic accountability”,69 including “fidelity to due process on a wide range of political fronts”,70 are necessary to help keep state organs acting within the confines of the law.71 In order to fully realize the liberty and rights of the ordinary citizen, the democratic right of contestation should be recognized as being part of the mix of established institutional ideals and norms discussed this paragraph. As shall be further detailed in this study, in order to achieve the objectives of, and fully implement the democratic right of contestation, it must be supported across the government, allowing individuals to engage the various faces of the state in order to challenge state actors. This includes the need to have all manifestations of the right of contestation fully available to challenge decisions of the administrative state, such as the right to engage in robust, fully operational administrative litigation. As will be further explained in this study, in order to determine whether the democratic right of contestation is adequately implemented in the administrative litigation context, the following elements (“Implementing Criteria”) should be analyzed:
See Pettit, Republicanism, supra note 20, at 172. Id. at 172. 70 Id. at 175. 71 Id. at 172-83. 68 69
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1. Access – Whether ordinary citizens have full access to judicial bodies to contest the actions or inactions of the administrative state. When applied to courts or other formal contestation forums for appealing government decisions, this element is akin to access to justice, with both substantive and procedural aspects to it. Avenues for access to contestation forums should be made wide and limited as little as possible by procedural hurdles. 2. Judicial Independence – Whether judicial authorities reviewing the actions of the state in the administrative litigation context are structurally and procedurally independent enough to demonstrate fidelity to the law while not being unduly influenced or undermined by other organs of the government. 3. Procedural Fairness – Whether there are adequate procedures in place to allow all sides of administrative litigation cases the opportunity to be adequately heard and have a chance to prevail; this includes the right to review the substance of administrative decisions. 4. Adequacy of Remedies – Whether the administrative litigation judicial authority has the authority to impose and choose from a range of remedies that will adequately ensure that the aggrieved
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citizen will have interference of the state removed or at least remedied as justly as possible. Within this study, the need for, and functionality of, the above-listed elements will be further explored, their relationship with other established institutional ideals delineated and their implementation in the United States and Korea analyzed. Before moving on, it is important to note that the Implementing Criteria can be adapted to deal with other types of contestation forums. C.
Purpose of this Study.
In 2003, Judge Posner, one of the leading legal minds in the United States, bemoaned the fact that “judges and constitutional law professors have failed to articulate a coherent conception of democracy even though the relation between law and democracy is fundamental to the proper role of judges in a democratic society.”72 This is a stinging rebuke of the entire legal intelligentsia. Unfortunately, Judge Posner was correct then and his analysis stands today. His conclusion about the failure of constitutional law scholars to adequately consider the nature of democracy and law would be even more striking if applied to administrative law scholars. Indeed, there is little discussion about the theoretical constructs of law and democracy and virtually no discussion of the interplay between administrative litigation and
72
Posner, supra note 25, at 131.
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democracy in a theoretical or applied sense. This study aims to help fill that gap. This study will build upon previous examinations of components of administrative litigation systems in the United States, Korea and, to a much lesser extent, other leading jurisdictions, such as Germany and England, on both a philosophically-based normative and international comparative basis. What is unique about this study is that its primary goal is to delineate a normative legal framework for the analysis of administrative litigation systems through the lens of the democratic right of contestation, primarily based upon concepts propounded by Pettit73 and Kumm.74 The study thus fulfills the purpose of both (1) providing a novel theoretical framework for operationalizing the democratic right of contestation and related norms, such as the rule of law and due process, within the administrative litigation context; and (2) giving some examples of application of such framework to contrasting legal systems placed in dissimilar democratic republics. A secondary goal of the study, which supports arriving at the first goal, is to analyze the structural authority and autonomy of the governmental organs that are charged with carrying out administrative litigation, and thus ordering the implementation of administrative litigation remedies for the benefit of individuals, in the jurisdictions selected for this study. 73 74
See, e.g., Pettit, Republicanism supra note 20. See, e.g., Kumm, Legitimate Authority, supra note 26, at 17.
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Specifically, this study addresses the following two primary research questions, as well as listed ancillary questions that aid in answering these primary research questions: a. Primary Research Question 1: Whether the democratic theories underlying the democratic right of contestation can be distilled and formulated into elements used as a basis for analyzing how well actual administrative litigation systems, including related judicial structures, substantive and procedural review processes, and administrative litigation remedial schemes, safeguard individual liberty? i.
Are elements we find, whether common or not, necessary or desirable to safeguard the people from domination by, and arbitrary actions of, the state?
ii.
Based on the analysis of administrative litigation systems herein, can the commonalities we find be used to establish international standards for administrative litigation systems?
iii.
Based on the analysis of administrative litigation remedial systems herein, can the differences we find between them be justified as reasonable mechanisms for restraining unjust administrative impingement?
b. Primary Research Question 2:
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Have the United States and Korea (and, as applicable, other jurisdictions comparatively analyzed herein) established administrative litigation remedial systems that are sufficiently robust to safeguard its democratic institutions, as well as the liberty and rights of its people from unjust administrative impingement? D.
Selection of Jurisdictions with Issues of Focus. 1. Jurisdictions in Focus: Korea and the United States.
Korea and the United States have been selected as the key jurisdictions for demonstrating how to analyze administrative litigation systems using the elements distilled from theories discussed. The reasons for this are many, but they include the fact that these jurisdictions nicely contrast with one another on a variety of metrics and also display key similarities as well. For example, with respect to such similarities, both are democratic republics with their own written constitution. Their constitutions provide relatively similar separation of powers between the legislative, judicial and executive; enumeration of rights for the people and broad commitments to institutional ideals to ensure the democratic functionality of the state, including the rule of law and a key component thereof, due process. Despite the similarities of their constitutional and legal systems, Korea and the United States also have fundamental differences that make their inclusion herein theoretically and practically stimulating and useful. For
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example, the former is a civil law jurisdiction while the latter is a common law system. Additionally, the former is a fairly young constitutional republic that has tried to rein in features of the administrative state that pre-dated its achievement of democracy in the late 1980s. The latter has the oldest functioning written constitution in the world and has struggled to place a modern administrative state on top of its classically republican constitutional underpinnings. Finally, Korea is clearly a jurisdiction that has a very distinct political, legal and philosophical traditions rooted in “Eastern” philosophies that have been infused with a wide variety of outside Asian, 75 continental European and even American influences; while the United States is firmly and more narrowly grounded in the political, legal and philosophical traditions of the “West.” Each of the aforementioned similarities within and distinctions between the two jurisdictions of focus, as well as their broader cultures and histories, have led them to incorporate key protections of their democratic orders in their own ways. Thus, for example, Korea provides a different mix of administrative litigation remedies from other civil law and Asian jurisdictions. Similarly, the United States both empowers and undermines the capacity of its
See, e.g., Chongko Choi, LAW AND JUSTICE IN KOREA: SOUTH AND NORTH 321-22 (Seoul National University Press 2005) (recounting the five major stages in which Korea has received foreign laws, including reception of the Chinese laws of Wei, Tsin and Tang between B.C. 37 B.C. and 917 A.D. through post-1945 reception of Western, particularly German, law).
75
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judiciary in a manner that is unique. Chapters 3 and 4 will, with detail, discuss such unique features in the broader context of this study. 2. Key Comparative Jurisdictions. Neither the United States nor Korea exists in a philosophical, constitutional or legal vacuum. Both jurisdictions have been influenced by, show similarities to, and stand in contrast with, other leading democratic constitutional democracies. Of those, two, in particular, deserve special mention: Germany and England. This is because ultimately Germany stands as a leading jurisdiction of influence for the Korean legal system76 and England holds a similar, although weaker, position with respect to the United States. England is also an important reference point because it is the oldest continuing democracy and point of origin of modern rule of law,77 making it essentially the modern home of two of the three pillars of the Council of Europe, which is one of the preeminent international organizations charged with setting and safeguarding critical international norms.78 i.
Germany.
76 Id. at 160-63 (describing the long history of “German-Korean kinship in law” and the how “Korean legal culture” has continued its “uniquely pro-German” bent. Id. at 162. 77 See European Commission for Democracy through Law (Venice Commission), REPORT ON THE RULE OF LAW 3-5 (Apr. 2011) (describing and analyzing British conceptions of the rule of law in connection with democracy and human rights, and in comparison, with the German concept of “Rechtsstaat” and the French concept of “Etat de droit”) [hereinafter “Rule of Law Report”]. 78 Id. at 2.
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One of the key features to recognize when engaging in comparative legal studies is to come as close as possible to “matching apples to apples” – making comparisons to like subjects. Germany is an apt subject for some aspects of comparison herein given that so much of Korean law, particularly administrative law, looks to German theory and practice as a reference point and even a guide. While Korea and Germany are both civil law jurisdictions at their foundation, the German system of public administration does vary in some crucial ways from the Korean system. Before getting to German administrative litigation itself, it is useful to recognize that the German definition of “public administration” is quite expansive and defined with a unique set of categories. Such categories include (1) police and regulatory administration (Eingriffsverswaltung), (2) the service administration (Leistungsverwaltung), (3) the planning administration, which focuses on “amelioration of the economic, social and cultural conditions of life by way of planning … projects”79, (4) the fiscal administration, which deals with state revenue, and (5) the procurement administration, which organizes supply for all administrative functions.80 Notably, the inclusion of the police in the broad category of public administration is singularly important for the German system.
Michael Nierhaus, Administrative Law, INTRODUCTION TO GERMAN LAW 87, 87-8 (J. Zekoll & M. Reimann, eds., 2d ed. Kluwer Law International 2005). 80 Id. at 88. 79
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As for its constitutional and legal order, its system of public administration and its related administrative litigation system, Germany serves as a useful reference point. It is profoundly influential in Korean law and public administration. Furthermore, it has very sophisticated constitutional, administrative and judicial concepts and structures. For example, Germany’s constitution, the Basic Law,81 broadly controls all administrative activity. Thus German “[a]dministrative law has therefore been described as constitutional law put into concrete terms.”82 Three key concepts serve to provide a hedge around the German administrative state collectively: (1) the principle of legality of administration (Gesetzmäßigkeit der Verwaltung), (2) the fundamental rights (Grundrechte) in the Basic Law and (3) the unwritten constitutional principle of proportionality (Grundsatz der Verhältnismäßigkeit).83 This highly organized linking of written and unwritten constitutional principles provides various bases of individuals to contest the actions of the German administrative state via judicial review mechanisms that ultimately uphold the four central elements of the democratic right of contestation in the administrative litigation context. Accordingly, Germany serves as an indispensable point of
GRUNDGESETZ [GG] [BASIC LAW], translation at http://www.gesetze-iminternet.de/englisch_gg/index.html. 82 Nierhaus, supra note 79, at 88. 83 Id. at 88-90. 81
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reference for this comparative study of administrative litigation systems, particularly with respect to the right of contestation. ii.
England.
As mentioned earlier, England is important to this study for many reasons, including its role as the leading democratic system that has been critical to the development of the modern order of democratic law and government, such as the rule of law, due process and the foundational common law system. In the past century or so, England has struggled to keep up with a world that has made constitutional choices that make the British seem out of step with international trends concerning the protection of individual rights and liberty. Only in the twenty-first-century has it taken steps to provide structural independence for its court system.84 Only slightly before that did it take any concerted domestic legislative efforts to delineate and protect human rights.85 As a result, England finds itself in the precarious position of having a system of democracy that is woefully out-of-date. While the state of the creaking institutions on Britain could take up countless volumes of research, suffice it to note that, for purposes of this study, England is the example of
84 Only in the twenty-first-century has the role of the Lord Chancellor been changed so that it does not have control over judicial appointments, as well as legislative and executive functions. See House of Commons Enquiry Service, The Lord Chancellor, https://www.parliament.uk/about/mps-and-lords/principal/lord-chancellor/ (last visited June 11, 2018). The continual sorting of separation of powers in England is a laborious and complicated task. 85 See generally Human Rights Act 1998, c. 42 (Eng.), http://www.legislation.gov.uk/ukpga/1998/42/pdfs/ukpga_19980042_en.pdf.
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why it is important to have all four elements of the democratic right of contestation made available in administrative litigation and within the broader legal system. For while England does provide relatively strong rights of, and procedures to assure, access for complainants; and England also provides relatively substantial procedural rights and a full complement of administrative litigation remedies, its commitment to a strong right of contestation ultimately falls down because of its lack of strong judicial independence, which will be further explained in Chapter 2 below. As shall be noted herein, these deficiencies have existed for hundreds of years and served as a catalyst for the development of the American system which ensures strong judicial review under a written constitutional order. The fact that most of the democratic world has followed the basic contours of the American system as a means to provide meaningful and strong protections for individual liberty, all while England struggles to find its way out of the eighteenth-century, indicates how far behind the English system has fallen on the one key issue of the judiciary. Until that is fully resolved, England will continue to be a negative counterpoint in this type of comparative analysis. With that said, England does provide some strong examples of the other elements of the right of contestation in administrative litigation. They will be noted as appropriate herein.
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E.
The Significance of the Study.
While the heightened procedural and substantive oversight of bureaucracies around the world has become an important feature of modern public law, scant attention has been paid to the structures, procedures and enforcement mechanisms of such schemes, particularly in light of how well they support the practical realization of the rights and legal expectations of the ordinary citizen. Indeed, when conducting basic research in this field of study, the dearth of studies or even ancillary discussions concerning the nature, purpose and use of administrative litigation systems becomes glaringly apparent. Administrative litigation takes up a small fraction of the space devoted to administrative law in the average textbook and comparatively seldom does it find its way into academic journals. Not only are multi-pronged comparative analyses of administrative litigation systems uncommon, looking at such systems through the lens of legal and political theory is novel. While constitutions, constitutional structures and constitutional law are often analyzed within broader comparative, philosophical and theoretical contexts, administrative litigation systems are typically left out. Indeed, administrative litigation is generally viewed as merely a hedge built around public administration to help ensure that the aims of efficient, effective and economical public administration do
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not undermine due process and possibly some broader notions of the rule of law. The growth, and resulting need for heightened oversight, of public administrative structures in the post-World War II era has received a reasonable amount of attention in academic circles; however, little attention has been paid to administrative litigation systems and whether they meet their intended purposes. Frankly, there is little by way of any theoretical framework that has been focused on determining the interrelated aspects of administration. There has not been a detailed analysis of how administrative litigation systems support democracy within liberal or republican theoretical frameworks. No study similar to the one presented herein could be located in three years of research on this subject. In other words, no one has linked the theoretical republican-based democratic right of contestation to actual administrative litigation systems. This study links theory and real administrative litigation systems that impact the rights of ordinary people. This is done by looking at access for ordinary citizens, structural independence of courts, procedural fairness and adequacy of remedies within primarily Korean and American administrative litigation systems. Making this link provides a unique contribution to the marketplace of ideas in both administrative litigation studies, as well as the application and development of theories of democracy.
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Many aspects of this study have been discussed in other literature. For example, there have been some discussions of, and actual proposals for, reforming certain aspects of the Korean administrative litigation system, particularly in light of German examples of administration litigation remedies. However, a broader comparative analysis of administrative litigation structures and remedial systems, including their relationship to supporting the legitimacy of the democratic state has not been done. The broad purpose of this research is to build upon past discussions of administrative litigation systems and both Inter build a normative framework against which to compare administrative litigation systems in the democratic contestation context; and (b) analyze key elements of the American and Korean administrative ligation systems, including, access, judicial independence, procedural fairness and codified remedies, within such context. Both features fill voids found in current research, particularly with respect to both (1) featuring the concept of operationalizing the democratic right of contestation in the administrative litigation context and (2) doing so with a study of the legal systems analyzed herein. F.
Objectives and Methodology of Research.
There are various candidates for testing the depth of democratization, such as protection of voting rights, or even the treatment of politically disfavored elements, such as labor unions or minority political parties, within the 40
administrative state. This research takes a different approach. It is focused on whether those who are impacted by the administrative state can operationalize the right of contestation and ultimately obtain the practical realization of their legal rights via administrative litigation. What piqued interest in this research was a first reading of the Korean Administrative Litigation Act in 2013. Upon first reading it, two incongruous elements stuck out: First, Korea appeared to have a relatively progressive set of procedural rules for providing ordinary persons access to the administrative litigation system. Second, the set of administrative litigation remedies made available to successful litigants against the Korean administrative state seemed incomplete when compared with those the author was familiar with from his time as a litigator in the United States. Most notably, there appeared to be no strong form of positive or negative injunctive relief. So, it appeared that one could get one’s “day in court” but whether one could obtain the practical realization of common rights subject to administrative litigation seemed highly questionable. This led to one simple question that launched this research: Does Korea’s codified administrative litigation remedial system fit within generally accepted international norms concerning the rule of law and best practices of democratic republics used to restrain their public administrators? This led to a broader comparative analysis of the Korean administrative litigation system, the author’s home country’s system and other
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systems, all within a research framework that explored various elements of both theories of human freedom and specific elements of administrative litigation systems around the world. There is not a clear basis for judging administrative litigation systems as a whole. In a democratic republic, it would seem appropriate to judge such systems in the context of how well such systems support the key purposes of democracy within a well-accepted theoretical framework, such as that of republican theorists. After an analysis of literature, the author distilled key elements of Pettit’s republican-based theory of contestation, which is meant to serve as a safeguard for liberty objectives of the democratic republic and linked them directly to what administrative litigation ought to be about. So, the link was then made between the key elements of administrative litigation detailed herein and a broader theoretical basis for both justifying its purpose and analyzing the effectiveness of its elements in meeting its purpose: the democratic right of contestation. Since the relatively strong Korean bureaucratic state has significant influence over the substance of legislation, Korea has had to engage in a deliberate struggle to adopt and implement a system administrative law that wholly supports foundational ideals that are woven into the fabric of widely accepted norms of liberal democratic governmental administration, including the democratic right of contestation and interrelated concepts like the rule of
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law.86 Similarly, the strength and complexity of the American administrative state lead to similar queries about the adherence to such norms in the USA. Particularly, given that the constituent elements of such norms are often illdefined and thus matters of controversy, it is necessary to try to identify benchmarks (or the closest approximation thereto) against which nations can measure their performance. Such benchmarks can serve as the foundation for determining the actual substance of these broad norms, including those necessary to ascertain how well administrative laws conform to the normative framework of democratic contestation. Given the great state of national and international variation and fluidity of economic, political, cultural and legal systems, what can be done to establish and measure a nation’s compliance with international standards of administrative law? Using basic norms of logic, both deductive and inductive methods could be used. In this study, deductive reasoning is used in connection with establishing the theoretical basis for linking administrative litigation systems, including remedies used therein, to both the democratic right of contestation and broader international norms concerning the constitutional foundations of administrative law: theories of democracy, the
86 See, e.g., Rule of Law Report, supra note 77 (“The concept of the ‘Rule of Law’, along with democracy and human rights, makes up the three pillars of the Council of Europe and is endorsed in the Preamble to the European Convention on Human Rights.”).
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rule of law and separation of powers.87 Thus theoretical deduction will be used as the framework for demonstrating the crucial role administrative litigation systems play in supporting thick democratic legitimacy within republican theory and related norms. This normative linkage will naturally implicate the ability of the state to protect and uphold the fundamental rights of the citizenry as well as commonly conferred legal rights, such as the right to obtain building permits. Additionally, selective inductive reasoning can be used to benchmark certain elements of concrete administrative litigation systems. For example, one could analyze administrative legal systems, ascertain their respective best practices and then emulate them. This study implements this approach with a focus on, inter alia, leading democratic republics’ administrative litigation structures, procedures and remedies. This is done to determine if we can isolate minimum operational, procedural and remedial standards (and some best practices). This is done to establish an operational framework that can be used to compare administrative litigation systems – in this case, focusing on Korean and American versions – with the standards distilled from analysis of leading democratic administrative states in order to determine strengths and See, e.g., Mahendra P. Singh, GERMAN ADMINISTRATIVE LAW IN COMMON LAW PERSPECTIVE 10-18 (2d ed., Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht 2010) (analyzing the constitutional foundations of German administrative law – democracy, the rule of law, separation of power and social welfare [The author has not included social welfare as a broad constitutional doctrine underlying the generic liberal administrative state – this is because social welfare rights are recognized in all advanced democracies but not necessarily as a constitutional foundation of the administrative function of government]). 87
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weaknesses of each system and, if applicable, make suggestions or recommendations for reform. In order to substantiate the need for implementation of, and explore the contours of, the democratic right of contestation in the administrative litigation context, this study has provided a conceptual framework and explanation of this study’s purpose in this Chapter 1. Chapter 2 lays out the foundational theory of the right of contestation; explains the linkage of such theory to the rule of law, due process and separation of powers; and then explains the key elements necessary to implement the right of contestation in administrative litigation. Chapter 3 discusses issues in the American administrative litigation system, particularly the need for access and procedural reforms. In Chapter 4, issues in the Korean system are addressed, with focus placed on the structural independence of courts and the need to reform administrative litigation remedies. Chapter 5 consists of a brief conclusion.
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Chapter 2. A.
The Normative Framework of the Democratic Right of Contestation. Foundational Theory: From Plato to Pettit. 1. Historical Roots of Contestation within Western Philosophy.
Various schools of Western political theory disagree about whether democracy itself, particularly in light of its many permutations, is a basis for creating moral legitimacy that requires citizens to comply with laws that are created in a democratic system. One thing that they do generally agree upon is that the thin concept of democracy – that creation of law by majority rule – is insufficient to legitimize the democratic state as the creator and enforcer of rules against the individual. For the democratic right to vote itself – government premised on majority rule – can lead to the creation of laws and institutions that dominate and thus oppress individuals and minority groups. As Pettit notes, “majority support is certainly not a criterion for good law.”88 Thus constitutional constraints must be constructed around majority rule to control and diffuse power and, ultimately, there must be a deeper level of engagement available for the citizen to impact – yes, contest – the decisions and actions of the democratic state, particularly when the rights of such a citizen are subject to being impacted by state action or inaction.
88
Id. at 182.
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Having a society of formal equality of rights and privileges, as well as just and good laws, is desirable. How is it possible to guarantee such a thing in a society where there is a ruling class that can wield the authority of the state to meet its own ends? These questions have vexed rulers, those who are ruled and philosophers for thousands of years. Remarkably, in Western thought, the two leading philosophical schools that consider and influence government, law and broader societal issues – liberalism and republicanism – are both built on the same foundation of Greek, Roman and Enlightenment thought. When it comes to matters considered in this study, such currents of philosophy are instructive and will receive further treatment at this time. As discussed in subchapter 1.B.1 above, the democratic right of contestation has found currency in both republican and liberal concepts of democracy. Although the two schools of thought share slightly different conceptions of liberty, their similar interests in ensuring that government actions are legitimate in that they preserve liberty, regardless of their different definitions of such term, lead them to essentially the same conclusions about the need to recognize and implement the democratic right of contestation as being critical to having a legitimate democratic constitutional order. The need to protect liberty with a right of contestation is an idea built into most modern constitutional democratic republics. In the arc of history, this development is relatively modern yet rooted in concepts found in the writings of Plato.
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The democratic right of contestation finds its fundamental reason for existence in serving as a tool to allow individuals the right to engage with the state as necessary to preserve individual liberty and human dignity. Before it is more clearly expounded upon and its clear linkage to administrative litigation fully iterated, it is important to note its ancient roots beyond classical republicanism and that such roots lead to a theory of democratic contestation that has validity in American and European constitutional practices concerning judicial review and administrative litigation.89 Indeed, the roots of the democratic right of contestation go back at least as far as Socrates, who preached and ultimately died for engaging in what Kumm, in tribute to Socrates, labels “Socratic contestation”: “the “practice of critically engaging authorities, in order to assess whether the claims they make are based on good reasons.”90 Kumm identifies Socrates with the concept of contestation since it was expounded upon by Plato as having originated with Socrates in the early Platonic dialogues.91 Indeed, the democratic right of contestation is an overriding theme of virtually all of Plato’s writings. A recurring theme of each of his recognized works is the voice of Socrates contesting the established order and actions of 89 See Kumm, Legitimate Authority, supra note 26, at 3 (positing that no theory has been developed by European scholars explaining why “the Rationalist Human Rights Paradigm that dominates European [constitutional] practice . . . should be regarded as attractive.” Id. at 3. Kumm posits that the inherent rationale for such practice is “to legally establish a practice of Socratic contestation.” Id. at 4. 90 Id. at 3. 91 Id. at 3-4.
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the society in which he finds himself. Primarily by analyzing Plato’s Apology, Kumm identifies three key elements of Socrates’ contestation, which elements are constituent parts of Pettit’s democratic right of contestation. 92 Plato’s Socrates begins by insisting upon engaging with statesmen and other leading figures of society.93 In other words, he insists that he simply has a right to contest. Second, he utilizes elenchus, which is a method of questioning wherein he engages in a series of questions meant to test the veracity of earlier statements and, thus, come to the truth.94 This is an adversarial and deeply probing type of questioning meant to ferret out contradictions and outright lies. Third, Socrates engages in his contestation in public spaces but he does so away from democratic political tumult, as he asserts ordinary democratic political discourse is too passionate and subverts the ability to get to the truth.95 Notably, each of these elements is crucial to the proper and democratically legitimate functioning of modern administrative litigation. Notably, the aim of the type of contestation set forth in Plato’s works is justice. Indeed, Socrates’ entire aim is to establish a practice of public contestation to test claims of statesmen and other elites in order to avoid injustice. Relatedly, he contends that the pathway to tyranny and injustice is
Kumm, Justification, supra note 20, at 153-155. Id. at 153. 94 Id. at 153-154. 95 Id. at 154. 92 93
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most clearly found when individuals give up public contestation of those in power.96 Building upon the concept of Socratic contestation, which aimed to establish justice, ancient Roman republican philosophers established freedom in the form of non-domination as the aim of the republic.97 They read and built upon ideas of Plato, Aristotle and other leading Greek philosophers. They ultimately identified and established a mixed constitution and a contestatory system for citizens as key elements necessary for a republic to preserve the liberty of its citizens. Roman writers who propounded such ideas included Polybius, Marcus Tullius Cicero and Titus Livius.98 Although they clearly consulted earlier Greek thinking, Romans “were united in the belief that it was Rome that first gave life and recognition to the key republican ideas.”99 For modern republican thought, no Roman republican idea has proven more important than that of freedom as non-domination. The Roman conception of such idea is that “you must not be subject to the will of others in how you make [certain] choices; you must not suffer dominatio, in the word established in Roman republican usage.”100 This conception of non-
Id. at 156. Pettit, Terms, supra note 45, at 6. 98 Id. 99 Id. 100 Id. (citation omitted). 96 97
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domination still resonates as a key distinguishing feature of republican theory and also represents a key development in the theory of human freedom. From medieval times through the eighteenth-century, Roman and ancient Greek republican concepts were revived. Those who crafted various Western experiments in government meant to supplant monarchy drew heavily upon republican thought. This included leaders of northern Italian city-states, and the later republican experiments of Poland (in the sixteenth and seventeenth centuries), the Dutch (in the seventeenth and eighteenth centuries) and the English (1640s and 1650s).101 While there were interesting developments with respect to applied republican theory, Nicolo Machiavelli, in his Discourses on Livy, laid the theoretical framework for those seeking to fight monarchy with concepts of “political self-understanding”102. Eventually, works of leading republicans were built upon by Locke and others who would launch the liberal tradition. Before the two schools of thought were defined separately, they were seen primarily as ideals that served as inspiration for British and American republicans. The most notable of those led and supported American independence from Britain and its eventual constitutional system. Republican influence was so strong at the time, that even non-republicans argued on republican terms in support or against political issues of the day, including whether to ratify the federal American 101 102
Id. Id.
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Constitution.103 Of course, such constitution is built upon a combination of republican political theory and the practical experiences of the American Founders. Included in such document, particularly the Bill of Rights, we see manifestations of the democratic rights to vote and engage in contestation, as well as republican constitutional mechanisms to protect such rights. These include separation of powers with checks and balances and enumerated contestational forums that citizens have a right to engage in. 2. Contestation Rights within Current Theoretical Camps. The previous subchapter set forth the history of key classical republican ideals, particularly those aimed at bolstering liberty. The democratic right of contestation, as identified in this study, draws most clearly from the theories of democracy, as most clearly rooted in classical and modern republicanism. Republicanism, in its classical sense, is “a theory of political liberty that considers citizens’ participation in sovereign deliberation necessary to the defense of liberty only when it remains within well-defined boundaries.”104 In other words, republicanism’s fundamental premise is that representative democracy’s purpose is to defend individual liberty and the democratic state must be constrained in order to do so. Only when a republic is structured to meet such purpose can it be viewed as democratically legitimate. Thus,
103 104
Id. Maurizio Viroli, REPUBLICANISM 4 (Antony Shugaar trans., Hill and Wang 2002) (1999).
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classical republicanism105 sits at the foundation of modern political constitutional and legal theories that both identify as either republican or liberal. Key ideas that distinguish republican ideals from liberal ideals or those of other philosophies include the following: 1. Liberty “as non-domination … is the primary concern of the state or republic.”106 2. “[I]f the republic is to secure the freedom of its citizens then it must satisfy a range of constitutional constraints associated broadly with the mixed constitution.”107 3. “[I]f the citizens are to keep the republic to its proper business then they had better have the collective and individual virtue to track and contest public policies and initiatives: the price of liberty, in the old republican adage, is eternal vigilance.”108 We can see that contestation, within the third distinguishing feature, is linked to the other two features, in that it is both protected by, and also serves the aims of maintaining constitutional constraints and thus promoting liberty. The fundamental premise of the right of contestation is that individuals in a democracy should have not only the right to choose their leaders but also
For purposes herein, classical republicanism refers to the theories of republicanism discussed and practiced in fourteenth and fifteenth-century Italian towns, such as Florence, Venice and Pisa, and expounded upon by the sixteenth-century Italian diplomat-philosopher Niccolò Machiavelli. See id. at 4-9 (discussing the basis of classical republicanism). As Viroli argues in Republicanism, this study views liberalism as a schismatic outgrowth of classical republicanism and treats them both as espousing objectives that are those that support the democratic right of contestation: the protection of individual liberty. 106 Pettit, Terms, supra note 45, at 4. 107 Id. 108 Id. (emphasis added). 105
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have the right to hold those who govern responsible and accountable.109 In order to fully do this, prevailing republican and liberal theories demand that citizens must have the right to directly engage the instrumentalities of state to challenge the decisions and actions of the state. Under Pettit’s republican theory, only if such right is upheld can democratic control be effective110 and, thus, the democratic state and individual actions taken by state actors must be viewed as democratically legitimate. Both modern democratic liberalism and republicanism support the need for the right of contestation to protect the rights of the people against the overreach of public authorities.111 Indeed, it is from classical republicanism that liberalism inherited both (1) the “fundamental principle that sovereign power must always be limited by constitutional and legal norms”112 and (2) “the main goal of political society is to protect the individual, his or her life, liberty or property.”113 Kumm, who writes primarily from a liberaldemocratic point of view, validates contestation as being “complementary [to] basic institutional commitments of liberal democratic institutions”114. Pettit, a leading republican theorist of our time, argues that the right of contestation is
109 A W Bradley & K D Ewing, CONSTITUTIONAL AND ADMINISTRATIVE LAW 107 (14th ed. Pearson Longman 2007). 110 Pettit, Republicanism, supra note 20, at 172. 111 This link is most clearly illustrated by Kumm, who ties contestation rights, which are clearly republican in origin, to providing “archetypal expressions” of liberal-democratic constitutional commitments and related thought. See Kumm, Justification, supra note 20, at 170-71. 112 Id. at 6. 113 Id. 114 Kumm, Legitimate Authority, supra note 26, at 4.
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necessary to protect the underlying objectives of republican theory, particularly how to organize the state so that there is little or no arbitrariness exercised by the agencies of the state to coerce and thus dominate the people.115 Kumm ultimately ties the contestation right to modern European liberal-democratic constitutionalism116 while Pettit makes a case for universal application of the right of contestation with an appeal to republican theory. Both contend that contestation is necessary for ordinary citizens to have a practical realization of the most important individual benefits of living within a modern democratic constitutionalist state. So, in modern times, two prominent thinkers who have focused on the right of contestation are Pettit and Kumm. Their respective views are discussed in some detail below. 3. The Right of Contestation Applied to Administrative Litigation. i.
Symbiosis of Contestation and Constitutional Constraints.
Given that Pettit is a philosopher and political theorist, his writings focus on theory and do not get into the level of operational and implementation detail that law practitioners or even law professors might like to see. Nevertheless, his theories about the right of contestation are strongly built and well thought out. Of course, that is what one would expect from him, as he is the leading theorist on this subject. From his right of contestation theory, one can discern 115 116
See Pettit, Republicanism, supra note 20, at 171-72. Kumm, Legitimate Authority, supra note 26, at 29.
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key arguments that support, and key elements that are necessary for, a robust right of contestation to be used by ordinary people to challenge various organs of the state. More particularly, from Pettit’s seminal work Republicanism, one may discern the broad strokes that comprise key elements of the democratic right of contestation needed to build, or conduct a fundamental evaluation of, court systems that can evaluate if the administrative parts of government have acted properly vis-à-vis the legal rights of ordinary people. Pettit starts his case for contestation with the fundamental premise that the purpose of government is to secure liberty. Maurizio Viroli clearly states the republican view on what liberty is: Theorists of republicanism today claim that true … liberty consists not only of the absence of interference (in the actions that individuals wish to perform and are capable of performing) from other individuals or institutions, as liberals claim, but also the absence of domination (or dependence), understood as the condition of the individual who does not have to depend on the arbitrary will of others or institutions that might oppress him or her with impunity of so desired.117 The foregoing statement summarizes the key aim of Pettit. Indeed, he seems fixated on the need to establish methods by which the individual can be able to live life without being dominated by the state as a result of suffering under its arbitrary will. He believes the key to ensuring republican liberty – non-
117
Viroli, supra note 105, at 35.
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domination118 – is to set up “constitutional constraints in the ideal republic” that are comprised of “republican instrumentalities [that] should not be manipulable by those in power….”119 The “key to [Pettit’s] conception of democratic control is the claim that everything done by a republican government should be effectively contestable by those affected.”120 Iseult Honohan rightly points out that in order to make that possible, “a system of laws that provide guarantees against illegitimate interference, so that citizens may be able to act independently.”121 Thus laws can be seen as a central feature that protects against domination and the state is “not a necessary evil, providing security at the cost of some freedom,” but should be viewed as necessary to uphold such laws and positively promote non-domination.122 Or, as Braithwaite has contended, the republican conception of government and the laws it creates should provide “the assurance of not even being exposed to the possibility of arbitrary interference by an uncontrolled power.”123 Of course, such a conception of the role of law and government is aspirational
Iseult Honohan, Republicans, Rights and Constitutions: Is Judicial Review Compatible with Republican Self-Government?, LEGAL REPUBLICANISM: NATIONAL AND INTERNATIONAL PERSPECTIVES 83, 86 (Samantha Besson & José Luis Martí, eds., Oxford University Press 2009). Honohan states that republican freedom as non-domination “takes account not only of public domination by the State but also of areas such as work and family that have often been understood as private and non-political.” Id. 119 Pettit, Republicanism supra note 20, at 172. 120 Id. 121 Honohan, supra note 118, at 86. 122 Id. 123 John Braithwaite, Republican Theory and Crime Control, SOCIAL DYNAMICS OF CRIME AND CONTROL: NEW THEORIES FOR A WORLD IN TRANSITION 87, 89 (K. Bussman & S. Karstedt, eds., Hart Publishing 2000). 118
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but it does make it clear that power is to be controlled for the benefit of the individual, particularly members of minority groups.124 Pettit argues that the right of contestation is necessary to support constitutional constraints and that they work as an interrelated whole. Thus a brief discussion of his conception of constitutional constraints is warranted: The key guideline for constitutional construction under Pettit is that “the instruments used by the republican state should be, as far as possible, nonmanipulable.”125 This means that state instruments, institutions and initiatives should not be allowed to be manipulated “at anyone’s individual whim” and, relatedly, that “[n]o one individual or group should have discretion in how instruments are used.”126 In order to create hedges that minimize the manipulability of the instrumentalities of the republican state, there have to be three conditions that “serve to thwart the will of those who are in power … [and] make government more challenging to organize, not less.”127 Before identifying the three aforementioned conditions, it is important to note that democracy per se does not serve as a hedge against the arbitrary exercise of power. It is government that becomes so unwieldy that it cannot
Id. Pettit, Republicanism, supra note 20, at 173. 126 Id. at 173. Of course, it is impossible to eliminate human discretion from administrative decision-making. It is that reality that fills up courtrooms with administrative litigation claims. 127 Id. 124 125
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be used capriciously that does that.128 Pettit favorably cites English historian Frederic William Maitland’s insight that “[t]he exercise of arbitrary power is least possible, not in a democracy, but in a very complicated form of government.”129 Pettit’s three conditions are intended to create the complication necessary to severely lessen the threat of oppression by ensuring non-manipulability. The right of contestation is a means of ensuring that the constitutional instruments created under the three conditions are adequately controlled in a democratic manner.130 The three conditions to ensure a non-manipulable system are: (1) James Harrington’s concept that “the system should constitute an ‘empire of laws and not of men’”131; (2) legal powers that are dispersed among various legal parties; and (3) laws that are resistant to majority will.132 Each of these three conditions is attached to theoretical concepts that are commonly addressed in legal, political and philosophical studies: the rule of law, separation of powers and counter-majoritarianism, respectively. Their relationship to the right of contestation is discussed in greater detail in Part B of this chapter below. For now, it is important to note that the empire of laws Frederic William Maitland, A Historical Sketch of Liberty and Equality, COLLECTED PAPERS, I 845 (H. A. L. Fisher, ed., W. S. Hein 1981). 129 Pettit, Republicanism, supra note 20, at 174 (quoting Maitland). 130 Id. at 172. 131 Id. at 173 (quoting James Harrington, THE COMMONWEALTH OF OCEANA AND A SYSTEM OF POLITICS (J. G. A. Pocock, ed., Cambridge University Press 1992). 132 Id. 128
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condition is more clearly defined than the broad and confusing state of the rule of law today. Additionally, the concept of dispersion is part of a nuanced and systematic reading of the separation of powers fabric, wherein “dispersal of power as well as checks and balances can be construed as freestanding (if related) principles of their own.”133 The aforementioned three conditions are viewed by Pettit as being separate from the right of contestation. However, given that the right of contestation is intricately linked with them and necessary for their proper implementation, it is difficult to extract them from the right of contestation. Indeed, contestation is, in many instances, a hyper-vigilant form of countermajoritarianism. Ultimately, in Pettit’s expounding on the right of contestation itself, he layers in concepts that reinforce the conditions as being necessary for contestation.134 Thus the three conditions, among other factors, are necessary to provide the proper environment for contestation; while contestation is necessary to reinforce and sustain the three constitutional conditions. They have a truly symbiotic relationship. The symbiotic relationship is necessary to counteract the possible misuse of discretion from government actors in all three branches: legislators,
Jiří Baroš et al., Separation of Powers in Democratic Theory: Understanding Populism and Rise of the Unelected in Central Europe (Apr. 2018 draft) (unpublished manuscript), available at http://www.agenda.unict.it/allegati/seminario_convegno/1379.pdf. 134 See, e.g., Pettit, Republicanism, supra note 20, at 196 (discussing the need for contestation to be depoliticized and heard in a forum where “political voices have been gagged” – implicating all three conditions). 133
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administrators and judges. Legislators have the potential to misuse their discretion concerning the content of laws. Even if they do not misuse their discretion, it is impossible for them to create laws that are so perfect that judges and administrators simply act as implementing machines. Even if they could make such perfectly directive laws, “it may not be profitable to legislate in detail for how such officials should behave.”135 Given “the problematic nature of legal interpretation[,] … administrators and judges are bound to have a lot of discretion when they come to execute and apply those laws.”136 According to Pettit, the various permutations of contestation, not democratic consent alone, are necessary to deter government actors from abusing their discretion and also from remedying abuses that take place. Thus, contestation and consent are the twin pillars of self-rule of the people, the very essence of democracy.137 ii.
Preconditions to Democratic Accountability.
Pettit contends that government decision-makers need to be “accountable to the ordinary people whom they effect.”138 In order for that to take place, there are “at least three preconditions that have to be satisfied.”139 The republic must be (1) deliberative in its decision-making, (2) inclusive and (3)
Id. at 183. Id. 137 Id. at 186. 138 Id. 139 Id. 135 136
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responsive. Each of these implicates administrative litigation but the last is where administrative litigation most clearly fits. In deliberative decision-making, Pettit favors public decision-making that is debate-based versus bargaining-based. Debate-based decision-making is mostly applicable to the legislative process and involves different interest groups trying to secure mutual benefits with the least amount of concessions possible, with legislators relying upon “accepted canons of reasoning.”140 When this principle applies to administrative and judicial decisions, they will deal with more concrete, specific considerations but when the “laws are relatively silent … they may extend to include the more general considerations that would be relevant to legislators.”141 A key concept is that there must be proper attention paid to all sides, commonly accepted norms should be followed in decision-making and attention must be paid to making decisions that “are for the general benefit of the whole community.”142 The most important features, whether decisions are made in legislative, administrative or judicial capacities, are that (1) all parties be in a position to mount a challenge and (2) decisions are made by neutral parties using reasoned deliberation. Key elements of administrative litigation implicated in this deliberative condition are access, judicial neutrality (which implicates independence) and procedural fairness. Id. at 188. Id. 142 Id. at 189. 140 141
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Pettit’s concept of inclusion is premised on the idea that those offended by a legislative, administrative or judicial decision have to be able to be “heard in decision-making quarters.”143 Pettit places most of his focus on the legislature, on the need for it to represent all of the groups of society in a somewhat proportionate manner. He makes similar claims on the need for similar representation of groups in administrative and judicial bodies. In commenting on Pettit’s conception of the deliberative democracy, Braithwaite notes that “[f]reedom from domination requires that arbitrary power be vulnerable to contest. It does not require that everyone participate in political deliberation, nor that participation be maximized.”144 It does require challenges against power be able to be made from all elements of society.145 This requires multiple channels be made available for individuals from all groups of society to “complain and appeal; you must be able to state your grievance and demand satisfaction.”146 These channels include formal rights, such as being able to write a legislator, require an ombudsman to make a query or appeal a court decision. They also include informal rights, including the right to protest, demonstrate and associate, especially as necessary to take part in social movements.147 For purposes of this study, the key is that all groups and people who belong to such groups have an avenue available to Id. at 191. Braithwaite, supra note 123, at 90. 145 Id. 146 Pettit, Republicanism, supra note 20, at 193. 147 Id. 143 144
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complain and appeal against administrative actions within the administrative litigation system. It is a matter of access. The responsiveness condition has the clearest, particularized tie to administrative litigation. This is the condition that there must be a variety of proper formal fora for contestations in a proper hearing space. Pettit specifies that, as matters of primary concern, each such forum must (1) have sufficiency of procedures to guarantee a proper hearing; and (2) provide that adequate outcomes are available to provide satisfaction to those engaged in contesting matters of state148 – the assurance of satisfaction is, of course, a matter of having adequate remedies available. Pettit draws a distinction between fora where popular debate would provide the worst outcomes and those where quiet deliberation in a de-politicized arena is most appropriate – this is particularly important when contesting actions of the police, administrative functionaries and judges. Challenges against their acts need to be taken by depoliticized bodies with sufficient independence, obviously implicating separation of powers. Once again, the most prominent features that ensure the condition of responsiveness are adequacy of procedures and remedies. As for remedies, Pettit simply specifies that the state’s response to any contestation must make provision for the state’s challenged decision to be altered or compensation to
148
Id. at 195.
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be provided.149 Given the fact that it is impossible to satisfy every instance of contestation, those challenging government action or inaction must be assured that “they or those for whom they speak, are not subject to arbitrary authority and are not dominated by government.”150 Such assurance can be found if they believe the “judgement against them materializes via procedures of which they approve—in awareness, for example, of the considerations that they themselves regard as persuasive—and that it represents a genuine attempt to determine the common interest.”151 Ultimately, procedural fairness is the critical factor that determines whether a judgment is viewed as legitimate. Pettit cites empirical evidence that positive or negative outcomes matter less than procedures in perceptions of the fairness of judgments.152 iii.
Distillation of the Implementing Criteria.
From Pettit’s theoretical preconditions we have been able to distill criteria that constitute the elements of the Implementing Criteria for the democratic right of contestation in administrative litigation. They are identified in Chapter 1 as sufficient access to a formal forum of appeal; structural independence of the adjudicatory authority; procedural fairness; and adequate practical remedies. The broader context of Pettit’s theories serves as a Id. at 197. Id. at 198. 151 Id. 152 Id. at 199 (citing Tom R. Tyler & G. Mitchell, Legitimacy and the Empowerment of Discretionary Legal Authority: The United States Supreme Court and Abortion Rights, 43 DUKE L. J. 703, 746 (1994); Allen E Lind & Tom R. Tyler, THE SOCIAL PSYCHOLOGY OF PROCEDURAL JUSTICE (Plenum 1988)). 149 150
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reasonable normative framework around which one can build and evaluate administrative litigation systems. Of course, Pettit’s theories are not sacrosanct. As one would expect, other philosophers and theorists attack his concepts. For example, Pettit clearly believes that judicial review and other mechanisms highlighted herein are necessary to provide a right of contestation and that such right of contestation is central to having legitimate self-government. Other republican theorists, including Jeremy Waldron, argue for the primacy of legislatures and finds a strong judiciary to be repugnant to the aim of non-domination. Waldron sees elected representatives of the people as the ultimate guarantor of liberty.153 Of course, there are other theories about how one can properly achieve democratic aims. Nevertheless, Pettit’s theories are as sound as any. They are supported by republican theorist Braithwaite154 and republican theorist and legal ethicist Catherine Parker, as well as a host of others,155 who together
Honohan, supra note 118, at 84-85. See, e.g., Philip Pettit & John Braithwaite, Not Just Desserts, Even in Sentencing, 4 CURRENT ISSUES IN CRIM. J. 225, 227-28 (1993) (delineating the authors’ jointly written conception of republican liberty). 155 A host of republican-leaning authors share Pettit’s central conception of republican liberty as being foundational republican thought. Quentin Skinner, one of the few modern republican thinkers who rivals Pettit in prominence and who has his own approach to republican thought, converges with Pettit on the fundamental conception of republican freedom. See generally Quentin Skinner, Freedom as the Absence of Arbitrary Power, REPUBLICANISM AND POLITICAL THEORY 83 (Cécile Laborde & John Maynor, eds., Blackwell Publishing 2008); see also Cécile Laborde & John Maynor The Republican Contribution to Contemporary Political Theory, REPUBLICANISM AND POLITICAL THEORY 1, (Cécile Laborde & John Maynor, eds., Blackwell Publishing 2008) (discussing the arguments of Pettit and Skinner within their volume). As noted in the Stanford Encyclopedia of Philosophy, such important republican writers as Maurizio Viroli, John W. Maynor, Cécile Laborde, Victoria M. Costa and, most recently in 2017, Robert S. Taylor, have expressed their adherence to Pettit’s conception of republican liberty. Frank Lovett, Republicanism, STANFORD 153 154
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stand on the shoulders of generations of like-minded theorists that have shaped modern constitutional republicanism in the real world. Consequently, for purposes of this study, the assumption is that Pettit has set forth a reasonable basis for both legitimizing and analyzing administrative litigation as an important safeguard of constitutional democratic republics. In this study, Pettit’s framework of analysis, as it applies to administrative litigation, has been broken down into the Implementing Criteria. The idea that Pettit’s theory serves as a reasonable basis for analyzing and legitimizing formal legal actions and institutions is further supported by legal scholars, including Braithwaite156 and Kumm. Kumm’s work, in particular, is germane to this study and is the subject of the next subpart of this chapter. 4. Kumm: Judicial Review is a Critical Manifestation of the Right of Contestation. The basic premise that Kumm uses as the foundation of his case for the right of contestation is that the representatives of the people are not “We the People” but are, like kings of old, capable of conceiving of themselves as sovereign. He colorfully implies that such representatives who “claim[] to speak as the embodiment of democracy” are just like other “public authorities that
ENCYCLOPEDIA OF PHILOSOPHY (Edward N. Zalta, ed., Summer 2018 ed. 2018), https://plato.stanford.edu/archives/sum2018/entries/republicanism/ (last visited Sept. 11, 2018). 156 See generally Braithwaite, supra note 123.
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conceive of themselves as sovereign.”157 Whether elected or not, any public authority that claims sovereignty is a type of monster that needs to be “tamed … and duly pushed off its throne and replaced by the idea of human dignity as the foundation of law.”158 The mechanism for ensuring that human dignity is protected is the courts, which serve as the mechanism for holding both legislatures and public authorities “accountable at the behest of effected individuals claiming that their legitimate interests have not been taken seriously.”159 Like many commentators who focus on the judicial review function of courts, Kumm is seduced by the allure of discussing courts “as guardians and subsidiary enforcers of human and constitutional rights”160, while leaving out the more mundane: thinking about the courts as broader enforcers of subordinate rights, such as those involved with securing building permits or social security payments. In other words, while Kumm writes in sweeping language about the right of contestation being necessary to protect against public authority generally, the leap from the need to use courts to protect broad human and constitutional rights to using them to protect rights under ordinary laws, including administrative rules, does not fully take place. This
Kumm, Legitimate Authority, supra note 26, at 32. Id. 159 Id. at 24. 160 Id. at 28. 157 158
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study builds on the concepts of Kumm to take the leap into the more mundane study of administrative litigation. Furthermore, while Kumm does address some actual cases in his argument for judicial review as a necessary mechanism for implementing the right of contestation, he does not focus on how to implement the right. He ultimately concludes that “[w]e should not need to discuss whether or not to provide for judicial protection of rights…. What deserves a great deal of thought is how to design the procedures and institutions that institutionalize Socratic contestation.”161 He identifies a series of questions that deserve serious consideration, but they focus very heavily on the protection of constitutional rights and constitutional courts. Some of the questions do have broader applicability and should also be considered for future explorations of the right of contestation in the administrative litigation context. Such questions, some of which are slightly modified and, unlike the original text, numbered, herein, include the following: 1) Should each individual be able to have any court address constitutional [and ordinary legal] rights issues[, particularly when challenging public agencies]? 2) Should there be special [administrative] courts with exclusive jurisdiction over [administrative] issues?162 3) How should judges be appointed? 4) How long should their tenure be? 5) What should the rules governing dissenting opinions, submission of amicus briefs, etc. be? Id. at 30. Questions 1) and 2) specified constitutional law and constitutional-court related themes. Administrative law references were substituted in both versions of this otherwise quoted material. 161 162
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6) How are decisions of the judiciary linked to the political process?163 The foregoing questions relate to the central elements of the democratic right of contestation identified in Chapter 1. The first two questions related to access to the courts. The second, third and fourth questions touch upon issues related to judicial competence and structural independence. The answers to the last two questions could have serious impacts on both the political legitimacy of court decisions and the impact of such decisions on other organs of government, with the fifth most closely related to procedural fairness and the last most closely tied to judicial independence. This study attempts to explore such questions within the broader discussion of the implementation of the right of contestation in Chapters 3 and 4. B.
The Right of Contestation in the Context of Related Norms. 1. Overlap with Theories of Good Law & Government.
The right of contestation, like other theories of law and politics, has elements that are buttressed by, and even overlap with, other theories. Most importantly for this study, it is imperative that we note the close association with the normative frameworks built up within these very significant political and legal concepts: separation of powers, rule of law, due process and even counter-majoritarianism. Basic explanations of the first three of such concepts
163
Id.
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and how they are generally applied in the American and Korean constitutional systems are set forth below. Counter-majoritarianism is also touched upon. 2. The Theory of Contestation and the Rule of Law. i.
The Origins and Expansion of the Rule of Law.
Modern Western rule of law first emerged in England about a millennium ago, with the idea that a written document, the Magna Carta, and the influence of councils representing certain interests could make a monarch accountable to the law. While similar ideas have been known at other times and other places in the world, it was the English who gave modern Europe its first written constitutional document, its first charter of civil rights and its first functional democracy. Notably, the United Kingdom does not have what would be recognized as a written constitution today, which puts it in the company of only Israel and New Zealand.164 British tradition, when combined with Enlightenment ideals and the practical philosophy of American revolutionaries led to the creation of the Constitution of the United States. Such written constitution, with various structural elements that restrain the manifestations of tyranny and bolster the rule of law, has served as the foundational example for written constitutions the world over.
164 Courts and Tribunals Judiciary, The Justice System and the Constitution, https://www.judiciary.gov.uk/about-the-judiciary/the-judiciary-the-government-and-theconstitution/jud-acc-ind/justice-sys-and-constitution/ (last visited May 31, 2018).
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Globalizing forces, including many concepts based on Western political and legal philosophy, have impacted the governing philosophy and structures of democratic republics around the world, including Korea. Given Korea’s evolving relationship to Anglo‐American ideas, as well as related ideals from continental Europe, such as Rechtsstaat and Etat de droit, it is important to analyze American and Korean administrative and judicial structures that can implement, defend or promote the right of contestation. In our modern times, the rule of law and its aforementioned continental European theoretical cousins have become so similar that certain versions of them are freely translatable back and forth. It has not always been that way. Indeed, since the Magna Carta, the rule of law has rested on a foundation of protecting individual rights, while, for example, Rechtsstaat, which really translates to “legal state” in English, rests on a foundation of the supremacy of statutory law in the legal positivist tradition.165 Dicey explained that the rule of law fundamentally stands for the proposition that no man is punishable or can be lawfully made to suffer … except for a distinct breach of the law established in the ordinary manner before the ordinary courts of the land.166 So, at their foundation, the rule of law and Rechtsstaat were historically primarily concerned about two different very different interests concerning Giorgio Pino, The Place of Legal Positivism in Contemporary Constitutional States, 18 LAW & PHIL. 513, 519 (1999). 166 Dicey, Albert Venn & Emlyn Capel Steward Wade, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION 88 (10th ed. MacMillan 1961) (1895). 165
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administrative agencies – the former with the ensuring that agencies do not infringe on individual rights and the latter with making sure the state does not act outside of legal boundaries. In today’s world of democratic constitutionalism, wherein the supreme law over the state embodies human rights principles, the two concepts now merge at human rights and enmesh from there. This merger has taken place as both concepts have become “thicker” in the post-World War II era – initially as a reaction to evil yet often “lawful” acts committed by various state actors in the 1930s and 1940s. Today, the rule of law is an amorphous concept that lends itself to various definitions and interpretations, some versions deemed robust or “thick” conceptions of the rule of law, while others are thinner, focusing on the narrowest elements. In connection with his push for greater judicial checks on majoritarianism, one of the great British jurists of our time, the late Thomas Bingham, former Lord Chief Justice of England and Wales, delivered a lecture on the rule of law in which he outlined a solid set of what he termed “sub-rules” of the rule of law.167 While scholars, jurists and other members of the legal community may disagree with some of his stated elements or wish to add others, they fairly reflect a great deal of the present Anglo-American view
Thomas Henry Bingham [The Lord Bingham of Cornhill], former Lord Chief Justice of England and Wales, The Rule of Law, Sixth Sir David William Lecture, sponsored by the Centre for Public Law (Nov. 16, 2006), transcript available at http://www.cpl.law.cam.ac.uk/past_activities/the_rule_of_law_text_transcript.php (last visited Nov. 24, 2012) [hereinafter “Bingham, Lecture”]. 167
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of the ingredients needed to create a robust and “thick”168 form of modern rule of law (the type he would have liked to see the British judiciary better defend). Notably, he adds in a few relatively modern twists that reflect a greater emphasis on human rights and internationalism than are found in simpler expositions of the components that comprise the rule of law.169 Bingham’s rule of law sub-rules are set forth below: 1. Accessibility & Predictability. “[T]he law must be accessible and so far as possible intelligible, clear and predictable.”170 2. Minimize Official Discretion. “[Q]uestions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion.”171 3. Equal Application. “[T]he law of the land should apply equally to all, save to the extent that objective differences justify differentiation….”172 4. Human Rights. “[T]he law must afford adequate protection of fundamental human rights.”173 5. Access to Justice. “[M]eans must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve.”174
168 See generally Jørgen Møller & Svend-Erik Skaaning, Systematizing Thin and Thick Conceptions of the Rule of Law 1-23 (Paper prepared for the 2010 Annual Meeting of the American Political Science Association, September 2-5, 2010), available at http://ssrn.com/abstract=1643367 (setting forth a detailed analysis of the attributes associated with thick and thin conceptions of the rule of law, including an analysis of the relationship between rule of law attributes). 169 Indeed, there are various conceptions of what the rule of law actually is. The treatment herein is by no means exhaustive but is only meant to present a few key variations. 170 Bingham, Lecture, supra note 167. 171 Id. 172 Id. 173 Id. 174 Id.
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6. No Ultra-vires or Arbitrary Acts. “[M]inisters and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers. This sub-rule reflects the well-established and familiar grounds of judicial review.”175 7. Procedural Due Process. Adjudicative procedures provided by the state should be fair, with open hearings.176 8. International Law. The currently “existing principle of the rule law requires compliance by the state with its obligations international law, the law which whether deriving from treaty international custom and practice governs the conduct nations.”177
of in or of
Given the ambiguous and fluid nature of the concept of rule of law, the above list is not a statement of requirements for the rule of law but is meant to demonstrate how broadly the term may be defined. The inclusion of human rights and international law makes this definition of the rule of law one of the thickest possible and it certainly tests the outer reaches of any definition. Indeed, Bingham himself noted that listing human rights “would not be universally accepted as embraced within the rule of law.”178 The rule of law has been broken down into easier to understand versions, such as the following fairly common modern recitation of elements: “restraint of power, protection of inalienable rights, and procedural legitimacy.”179 The
Id. Id. 177 Id. 178 Id. 179 Wonhyuk Lim, The Rule of Law and Competition Policy in Korea: Transition from a Development State to a Market Economy, THE RULE OF LAW IN SOUTH KOREA 145, 147 (Jongryn Mo & David W. 175 176
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great nineteenth-century leading English legal mind of Albert Venn Dicey distilled the rule of law into two elements: The first is the constraint of authority (“Authority”) and the second is equality before the law (“Equality”).180 The Authority element “suggests a ‘formal’ or ‘thin’ vision of the rule of law – the fact that officials and citizens alike are bound by and required to act consistently with the law.”181 The Equality element is the more malleable aspect of the rule of law and “arises from ideas of equality, citizenship and democracy, and the corresponding duties or responsibilities of state…. It suggests something more than formal validity is needed to make a law. This could be called a ‘thick’ or substantive vision of the rule of law, as it embodies values and norms.”182 For purposes of this study, arguments about the proper definition of the rule of law are being sidestepped – such arguments have been waged in many other venues.183 Whether a thin or thick version is accepted, the fundamental points about the rule of law made herein stand just the same.
Brady, eds., Hoover Institution Press 2009) (citing GEORGE P. FLETCHER, BASIC CONCEPTS OF LEGAL THOUGHT (Oxford U. Press 1996)). 180 Susan Kneebone, The Rule of Law and the Role of Law: Refugees and Asylum Seekers, REFUGEES, ASYLUM SEEKERS AND THE RULE OF LAW: COMPARATIVE PERSPECTIVES 32, 35 (Susan Kneebone, ed., Cambridge University Press 2009). 181 Id. 182 Id. (italics in original) (citations omitted). 183 See id. at 36-42 (discussing debates involving theories of Dicey, Trevor Allan, Herbert L.A. Hart and Ronald Dworkin with respect to legal, political and philosophical dimensions of the dispute over the rule of law).
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ii.
The Rule of Law within the Empire-of-Laws Condition.
Ensuring the rule of law is a key objective of modern administrative litigation systems. Indeed, it is for that purpose that judicial review systems have been created and utilized around the world. In Pettit’s theory of republican structures, the rule of law is a necessary objective that must be provided through fidelity to due process in a system of democratic contestation. Interestingly, achieving a rule of law condition is identified as a general objective of republicanism. Achieving the rule of law as a general objective is closely linked to achieving the specific objective of, and the reason for, the existence of the republican state – achieving liberty. It is a rule of law condition, or, more broadly, the empire-of-laws condition, that provides the proper environment for implementing the democratic right of contestation through formal processes, including administrative litigation. Regardless of the breadth or scope of concepts that various scholars and jurists believe are fundamental parts of the rule of law, there is one critical catalyst that makes the rule of law possible – state-created structures that monitor and force correct execution of the law by governmental authorities who promulgate, interpret and implement ordinary laws. Of course, the existence of and, in line with the first of the Implementing Criteria identified in Chapter 1, adequate access to such structures is implied in discussions of the rule of law. For Pettit, who sees the rule of law just one of two prongs of 77
a broader “empire-of-laws” theory, it is imperative that someone force agencies of government to “act only under the authority of law, and only in a way that accords with the requirements of law.”184 He looks not at the rule of law as standing alone, but as a normative framework that must be enforced to protect the people from arbitrariness. Within an empire-of-laws scenario, the people are protected from agencies of government by measures of contestability that, inter alia, enforce fidelity to due process when government actors are using their discretion.185 So, rule of law and due process are interwoven fully with the right of contestation. Notably, Pettit focuses less on the elements of the rule of law but is more interested in how to achieve it. Neither Pettit nor Kumm agrees with those who adhere to thin or formal conceptions of the rule of law who tend to emphasize the sovereignty of parliament. They implicitly land in the camp of substantive or thicker conceptions of the rule of law, which “justify the role of the judge to interpret the law in the light of fundamental principles or values.”186 Like Pettit, Kumm is interested in how to implement a system that protects the rule of law. Kumm concludes that it is the judiciary that is best situated to ask the questions of state actors necessary to enforce human rights, achieve just outcomes and achieve other aspirational goals of the democratic Pettit, Republicanism, supra note 20, at 175. Id. at 174-75. 186 Kneebone, supra note 180, at 48. 184 185
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liberal order. Kumm contends that it is through Socratic engagement that courts compel public authorities to defend themselves against contestation claims. The point of such engagement is to force public authorities to provide reasons for their actions – generally not elaborate theories – and determine if they have acted according to the basic tenets of the law. Judicial independence, adherence to correct processes and public exposure of the relevant hearings all provide the ingredients necessary to ensure that the line of questions pursued in the judicial space to determine the legal appropriateness of the public action in question.187 In the United States, the federal constitution imposes a structural order that ensures the rule of law is more than an abstract concept but a stoutly implemented legal and politically-supported constitutional principle. Unlike England, Korea, from a constitutional structure perspective, finds itself closer to the United States concerning how it protects the rule of law. This is the case, because both the United States and Korea use courts to check official tendencies towards tyranny with respect to fundamental rights and even more ordinary administrative legal controversies. However, as constituted in the United States and Korea, the structural constitutional order can be attacked for
187
Kumm, Legitimate Authority, supra note 26, at 2, 15-16.
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providing judges the capacity to undermine democratically enacted laws and thus engage in judicial overreach.188 When comparing the English constitutional model for protecting the rule of law with the American and Korean models, the question becomes whether it makes more sense to allow the legislature or the courts to ensure that public authorities uphold liberty and human dignity. For Pettit, the answer is clear: His empire-of-laws condition requires both the rule of law and a forced fidelity to due process.189 Kumm is even more emphatic that judicial review, conducted by judges who are wise enough to ask the questions that are necessary, is the best method for determining if state actors have acted in accordance with the law.190 Both Pettit and Kumm contend that legislators and administrators have too many opportunities to wield arbitrary power to be left to their own devices. Pettit also points out that administrators or judges can also engage in arbitrary behavior, particularly when they “exploit the obscurity or inconsistency of the law for their own purposes….”191 So all public actors need to be subject to second-guessing in order to uphold the rule of law.
188 See, e.g., Leslie Friedman Goldstein, Constitutionalism as Judicial Review: Historical Lessons from the U.S. Case, THE SUPREME COURT AND THE IDEA OF CONSTITUTIONALISM 78, 78-80 (Kautz et al., eds., University of Pennsylvania Press 2009) (criticizing the growth of the rule of courts or “courtocracy”). 189 Pettit, Republicanism, supra note 20, at 174-75. 190 Kumm, Legitimate Authority, supra note 26, at 14. 191 Pettit, Republicanism, supra note 20, at 174.
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In an empire-of-laws environment, the judiciary should be involved in asking the questions necessary to determine if the agencies of government have used their discretion and otherwise acted in accordance with the law itself and the broader tenets of the rule of law. This conception of the role of the judiciary in upholding the rule of law is consistent with the laws and practices of constitutional and administrative litigation in advanced civil law and common law countries, including both the United States and Korea. 3. Relationship of the Theory of Contestation with Due Process. Due process as a concept has been around at least since the Magna Carta, wherein it made its “most celebrated”192 appearance in the year 1215: No free man shall be seized or imprisoned, or stripped of his rights or possession or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by lawful judgment of his equals by the law of the land.193 Since that time, the core of the concept of due process has developed into a body of rules that “protect individuals during governmental proceedings, whether they are civil or criminal.” 194 Due process has both procedural and substantive sides. Typically, and for purposes of John H. Langbein et al., HISTORY OF THE COMMON LAW: THE DEVELOPMENT OF ANGLO-AMERICAN LEGAL INSTITUTIONS 125 (Aspen Publishers 2009). 193 MAGNA CARTA, ch. 39, translated in English Translation of the Magna Carta (British Library trans., 2014) (1215), https://www.bl.uk/magna-carta/articles/magna-carta-english-translation (last visited May 31, 2018). 194 LEGAL DICTIONARY, Due Process, https://legaldictionary.net/due-process/ (last visited May 31, 2018). 192
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this study, focus is placed on procedural due process. The underlying concept is that governmental procedures must be fair and follow established rules in a non-arbitrary manner. This includes the requirement that decision-making by state actors is “conducted in such a way that there is a potential basis for contestation.”195 As mentioned in the immediately prior discussion on the empire-of-laws, the broader theories and conditions that support the right of contestation weave together judicial review and due process as the guardians of the rule of law, as well as individual liberty and human dignity. At this point, it is necessary to highlight the different lenses one must look through when thinking about the rule of law versus individual liberty and human dignity. This will then help remind us of the nature of procedural rules and safeguards that must be undertaken by judges in administrative litigation contests in the name of due process. The rule of law, like due process, is a vague and sweeping concept. Similarly, liberty and human dignity have a variety of definitions and scopes of coverage attributed to them. Both human dignity and individual liberty focus on upholding the individual and should be seen from the standpoint of the individual affected by a particular action of the state. With respect to the rule of law and due process, both of these concepts apply Pettit, Republicanism, supra note 20, at 186. This requirement for establishing a potential basis for contestation could include the requirement that state actors create, maintain and, as necessary, produce (to the public or claimants in contestation proceedings) records of their decision-making processes, so that such processes may be challenged, whether in administrative litigation or other proper fora, such as legislative committees. 195
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equally to all parties involved in any formal or informal proceeding before the state. In an empire-of-laws that is focused on upholding individual liberty, concern for the state’s rights are negligible. What we are concerned about are the liberty interests of the individual and making sure that the state impinges upon them as little as possible. This point of view is necessary in order to understand how due process should be viewed and applied in the context of administrative contestation. For due process is a concept that, in order to serve any meaningful purpose, must be applied “across a wide range of political fronts.”196 It must be applied in a way that hems in the inappropriate use of discretion by state actors. Public administrators should be complying with basic due process in all of their functions – rulemaking, interpreting the law and rules, taking discretionary actions, etc. If they do not, then such lack of adherence to due process can serve as a basis for invoking the right of contestation in various venues, including an administrative litigation court. Regardless of whether due process is being applied by the administrative actor or in a hearing involving an administrative agent of the state, it is imperative that due process be viewed through the lens of individual liberty and human dignity. Why is this necessary? The law is not made for the benefit of the state but for the
196
Id. at 175.
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benefit of the people. Due process itself is a right of free humans who wish to remain free. To view due process from any other vantage point, including the rule of law, misses the whole reason for due process – to protect the individual from the arbitrary or otherwise oppressive actions of the state. While due process is a necessary component of the empire-of-laws condition that provides the right environment for the implementation of the right of contestation, it is also essentially the underpinning of the third of the Implementing Criteria necessary to operationalize the democratic right of contestation, procedural fairness, as identified in Chapter 1. This includes requiring public officials to be involved in “a process of reasoned engagement” in court when they are accused of violating a complainant’s rights.197 Such officials have to defend themselves in a process that compels them to answer written and oral questions directed at them,198 whether from a judge or an adversary, as appropriate in the relevant court system. This allows the court the opportunity to assess the coherence and reasoning used by the public authority to support its actions.199 Optimally, such queries would lead to the assessment of both the procedures used by, and substance of decisions made by, the challenged public authority. Such assessments need to take place under a set of fixed public procedural rules that lead to a public judgment. The public nature of the process, along with rules that ensure the Kumm, Legitimate Authority, supra note 26, at 15. Id. at 16. 199 Id. 197 198
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independence of the judicial officials (as per element two of the Implementing Criteria), help immunize the process from political processes and influences.200 The process of formal contestation, when governed by rules that allow for proper queries from an independent judicial authority, serve as an institutional basis for checking the legitimacy of state action. It is possible that, at times, even though proper procedures have been followed that judicial reasoning will be poor and a bad outcome result. Due process does not eliminate the possibility of human error or faulty reasoning. However, the use of regularized procedures that meet basic requirements of fairness as a means to check political decisions and administrative actions serve as “a ritualistic affirmation of [the] idea” that the legitimate authority of a legal act depends on the possibility of providing a justification for it based on grounds that might be reasonably accepted even by the party who has to bear the greatest part of the burden.201 In the end, procedural fairness not only helps a court to determine the validity of government action but also helps the public, including any claimant invoking the right of contestation, take comfort in both the idea that the state action in question has been ritualistically scrutinized but also, importantly, the
200 201
Id. Id. at 17.
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understanding that just the availability of judicial review under regularized procedures improves outcomes.202 4. Dispersion and the Separation of Powers. The third of the Implementing Criteria identified in Chapter 1, judicial independence, is reliant on both structural elements linked to procedural safeguards, which were discussed in the immediately prior discussion on due process, separation of powers. As discussed in subchapter 2.A.2 above, Pettit’s theory establishes preconditions for contestability. These preconditions can be summarized thus: The people (1) must have a right to be heard, (2) regardless of which groups they belong to, must have equal access to multiple channels to engage with the state and (3) most importantly for this portion of this chapter, must have access to a depoliticized forum wherein contestations against any legislative, administrative or judicial decisions can be heard.203 This last precondition is most closely associated with, as it is largely made possible by, adherence to the separation of powers and the broader empire-of-laws condition. The doctrine commonly referred to as “separation of powers” is really a component of broader political theory concerned with the allocation,
Id. at 18. Republicanism, supra note 20, at 186-96 (discussing the preconditions of democratic contestability). 202
203 Pettit,
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dispersion and sharing of power.204 When properly applied, the separation of powers is supposed to help guarantee, inter alia, the depoliticization of fora meant to hear challenges against state action. At least the republican version is supposed to do so by, for example, resulting in the creation of an independent judiciary.205 Other approaches to separation of powers may lead to other structural choices, such as a judiciary subordinate to the legislature. In order to understand differences in approaches and outcomes in discussions of separation of powers, it is important to note that separation of powers can mean any one or more of the following: 1. Separation of function between different units of government[;] 2. Separation of personnel between different units of government[; and/or] 3. Checks and balances between different units of government.206 The above-listed elements are manifestations of an underlying set of values and can be broken down differently, 207 as well as connected to other concepts for theoretical reasons.208 How one approaches such values can lead See id. at 177. See Baroš et al., supra note 131, at 6 (breaking down the separation of powers into three components, while categorizing checks and balances and a separate controlling component). 206 John Alder, CONSTITUTIONAL AND ADMINISTRATIVE LAW 173 (5th ed. Palgrave McMillan Law Masters 2005) (emphasis in the original). 207 See Baroš et al., supra note 131, at 6 (emphasizing the importance of construing the separation of powers broadly recognizing the three types of “‘separation’ (of institutions, functions, and personal incompatibility) and the principle of checks and balances which gets often confused with … [separation of powers] itself.”). 208 See, e.g., Waldron, Jeremy, POLITICAL POLITICAL THEORY 49 (Harvard University Press 2016) (identifying separation of powers, dispersal of power, checks and balances, bicameralism, and federalism principles which “work both separately and together as touchstones of political legitimacy”.). 204 205
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to different interpretations and versions of the separation of powers. For example, a common populist209 movement’s implementation, or legal positivist210 theorist’s conception, of separation of powers would provide for the strict separation of function and personnel but be skeptical of checks and balances between different units of government. In particular, populists are leery of unelected officials overruling elected officials as being a violation of democratic consent principles. As is noted in Chapter 4, some Korean theorists object to robust administrative litigation remedies due to adherence to a populist version of separation of powers. In the English system, separation of powers is sprinkled across certain aspect of its governance211 but it is hardly an overriding constitutional doctrine.212 In the German, Korean and American systems, as well as in most modern constitutional democratic republics, strict adherence to the separation of powers, meaning adherence to all three elements, is a matter of constitutional and practical fact. Of course, each system has its own method of implementing the separation of powers, See generally Baroš et al., supra note 131 (analyzing the attacks of populist governments in Hungary and Poland on the separation of powers, particularly the independence of the judiciary, in order to support the consolidation of power in the elected offices of government). 210 See Pino, supra note 165, at 519-521 (explaining how both administrative and judicial functions are subordinated to legislation under traditional conceptions of Rechtsstaat, which “squares with all … positivist doctrines … [and] is closely related to the legalistic features of legal positivism”). 211 See Alder, supra note 206, at 177-195 (providing a detailed discussion of the application of elements of the separation of powers in the UK). 212 English separation of powers practice does not incorporate strong separation of powers nor does it utilize a robust checks and balances system – parliament is the final arbiter of virtually all matters and has the right to control the executive function and override judicial actions. Id.; see also Thomas Bingham, Judges Possess the Weapon to Challenge Surveillance, GUARDIAN (Feb. 17, 2009), https://www.theguardian.com/commentisfree/2009/feb/17/surveillance-civil-liberties (last visited May 28, 2018) [hereinafter “Bingham, Judges”] (criticizing the lack of power that British judges to defend personal liberty as a check against Parliament). 209
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leading to different relative strengths of the organs of state, including how well they safeguard the liberty and fundamental rights of the people. Regardless of the type of governmental system, even a democratic constitutional republic, the “assumption is that if power is localized, in the sense of accumulating in this or that person, then power is potentially dominating.”213 In order to avoid domination by the state in a way that is arbitrary and oppressive, in other words, tyranny, powers of the government must be separated between and diffused across different organs of the state. Such diffusion makes it more difficult for the government to organize, ultimately making it almost impossible for any one person or faction to engage in systemically tyrannical behavior. While the rule of law “bears on the place and content of law”, the principle of dispersion is ultimately a condition concerned with constitutional structures that “bears on the way in which the law operates.”214 Think for a moment if legislators could decide for themselves whether laws they pass meet existing or higher laws or principles. In England, where the legislative and executive branches are intertwined and ultimately superior to the domestic courts, that happens and has been a root of some degree of tyranny going back hundreds of years. Indeed, of modern democracies, England has had a dismal record of protecting rights, particularly the freedom of speech 213 214
Pettit, Republicanism, supra note 20, at 178. Id. at 177.
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and rights to privacy. Such failures have been directly blamed on the concentration of power in Parliament resulting from the failure to disperse power as necessary to avoid tyranny of the majority. So, under Pettit’s republican theory, it is not the democratic right to vote that is by itself a guardian of the rights of the people but it is “a very complicated form of government” that makes “the exercise of arbitrary power … least possible….”215 This complicated form of government is made possible by dispersion of power. The dispersion of power across complicated, separate, overlapping and even “blurred” boundaries is the hallmark of the American constitutional form of government.216 Starting with Montesquieu’s conception that those who write and execute the laws should not be their own judges, it is critical that “relevant judicial power lies in other hands.”217 This leads us to the most commonly cited form of political dispersion, the separation of powers into the hands of separate legislative, executive and adjudicatory parties. Such separation of powers is found in the American federal government, as well as in the constitutional system of the Republic of Korea. Both constitutional republic’s systems vest legislative power in an elected parliamentary body, executive power in a popularly elected president and judicial authority in
Id. at 174. Margaret Z. Johns & Rex R. Perschbacher, THE UNITED STATES LEGAL SYSTEM: AN INTRODUCTION 115 (2d. ed. Carolina Press 2007). 217 Pettit, Republicanism, supra note 20, at 178 (citing Montesquieu). 215 216
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unelected judges. Notably, both systems further disperse power differently. Unlike unicameral Korea, the United States also has a bicameral legislature with bodies that represent different constituent interests. The United States also achieves decentralization of power in a much more radical way than does Korea,218 with its federal system that reserves large swaths of sovereignty, including the sweeping police powers, to its fifty states.219 The relative concentration of power in the political organs in Korea is subject to criticism and calls for constitutional reform. 220 While Korea has a more streamlined legislative system and a strong central government, the fear of consolidated judicial power on the part of antireform negotiators of the 1987 Constitution led to the splitting of judicial power between an ordinary court system, which has the Supreme Court of Korea as its highest body, and the Constitutional Court of Korea, which is a
218 Articles 117 and 118 of the Korean Constitution do provide for some local autonomy in administration of social welfare, etc., and with the election of local councils, but the actual level of power and authority to exercise policy and administrative independence from the central government is fairly weak when compared to federal systems with diffusion of key aspects of sovereignty over public policy and administration, such as those of the United States, Germany or Canada. 219 Pettit, Republicanism, supra note 20, at 179. 220 It is apparently in recognition of the importance of diffusion of power both horizontally, across the branches of national government, and vertically, between central and more autonomous local entities, that there have been calls to reform the Korean constitutional balance of power. Diffusing power further from central control via strengthening the courts as guardians of the sovereignty of the people expressed in Article 1 of the Korean Constitution and empowering local autonomy is one possible method. See, e.g., Jongcheol Kim [김종철], A Proposal for Constitutional Reform: With Special Focus on an Ideal of Contestatory and Balanced Democracy [권력구조 개헌의 기본방향과 내용: 견 제적 · 균형적 민주주의론을 토대로], 8 SNU L. REV. [법학평론] 76 (2018).
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standalone judicial body.221 Interestingly, jurisdiction over constitutional matters is actually split between the two court systems, with most constitutional questions having to go to the Korean Constitutional Court222 while jurisdiction for “a final review of the constitutionality or legality of administrative decrees, regulations or actions, when their constitutionality or legality is at issue in a trial”, lying with the Korean Supreme Court.223 Both the American and Korean legal systems provide for administrative adjudication and appeals prior to judicial trial within the ordinary constitutionally-established court systems, with Korea constitutionalizing the concept.224 This type of splitting of adjudicative authority between the administrative agencies and the judicial branches is a common type of blurring of the lines between clearly delineated separation of powers that takes place in advanced democratic republics with very complex modern bureaucracies. Regardless of where the adjudicatory power lies – with quasijudicial bodies or actual judicial bodies, “as a practical matter…, absent
221 Haim Chaihark, Uneasy About the Rule of Law: Reconciling Constitutionalism and “Participatory Democracy”, THE RULE OF LAW IN SOUTH KOREA 23, 26 (Jongryn Mo & David W. Brady, eds., Hoover Institution Press 2009) (noting that the institution of the Constitutional Court was an “anomaly because although the system of maintaining a separate constitutional court has roots in European countries with parliamentary systems of government, the remainder of the Korean government structure was basically understood to be modeled on the American-style presidential system.”). 222 대한민국헌법 [Constitution], art. 111 (S. Kor.), translation at https://elaw.klri.re.kr/eng_service/lawView.do?hseq=1&lang=ENG. 223 Id. at art. 107(2). 224 Id. at art. 107(3).
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judicial enforcement of the law, agencies are less likely to comply with it.”225 This is the case because it is nearly impossible for one to be the judge of the appropriateness of one’s own actions – thus, proper functioning of the separation of powers does require there be some form of overlapping jurisdictions if not outright formal checks and balances. Although identified by differing means, the dispersion of power also finds its way into administrative legal systems in all advanced democratic republics. Administrators write laws for legislatures to pass, write rules and take enforcement actions to implement such laws, informally and formally interpret laws and administrative rules and also have mechanisms that formally adjudicate the legality of administrative acts. Given these various roles of the administrative state, it is clear that various powers are dispersed across and concentrated in modern administrative agencies. In order for the dispersion of power theory to be properly implemented, ordinary people have to be able to contest rulemaking, interpretation of laws and rules, and implementation (or non-implementation) of laws and rules. While there may be other mechanisms for doing so, administrative litigation is a crucial tool that can be used to check the powers of administrative actors in their various roles. To the extent that there are not adequate checks elsewhere, the
William F. Funk et al., ADMINISTRATIVE PROCEDURE AND PRACTICE: PROBLEMS AND CASES 145 (3d ed. Thompson/West 2006). 225
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dispersion of power theory requires that a neutral, independent formal forum be available for that purpose.
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C.
Democratic Right of Contestation: Implementation in Administrative Litigation Systems.
As discussed in Chapter 1, we can utilize the Implementing Criteria identified therein to determine how well a particular jurisdiction is implementing the democratic right of contestation within its administrative litigation system. Once again, such criteria analyze whether (1) ordinary citizens have full access to judicial bodies to challenge and contest the actions or inactions of the administrative state (“Access”); (2) judicial authorities reviewing the actions of the state in the administrative litigation context are structurally and procedurally independent enough to demonstrate fidelity to the law while not being unduly influenced or undermined by other organs of the government (“Judicial Independence”); (3) there are adequate procedures in place to allow all sides of administrative litigation cases the opportunity to be adequately heard and have a chance to prevail – including the right to review the substance of administrative decisions (“Procedural Fairness”); and (4) the administrative litigation judicial authority has the authority to impose and choose from a range of remedies that will adequately ensure that the aggrieved citizen will have interference of the state removed or at least remedied as justly as possible (“Adequacy of Remedies”). A discussion of the basis for and, as useful, application of each such theoretical element of the Implementing Criteria follows:
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1.
Access to Review in the Contestation Forum.
While it may seem obvious, in order for anyone to take advantage of the possibility to challenge administrative agencies within an administrative litigation system there must be clear and meaningful routes available to access the courts. Pettit seems to presuppose some degree of access to initiate actions in court in order to challenge the administrative state and is mostly concerned about providing equal access to all groups in society.226 As with other parts of his writings, he seems to leave the concepts and particulars of legal procedures for others to focus on. Kumm, who focuses more than Pettit on legal procedures generally, also indicates a need for access but does not go much further. So, to determine what might be appropriate as broader normative guidelines for access, this study will turn to other sources for guidance. The key is keeping in mind what is necessary in order to ensure that access to administrative litigation fora is democratically legitimate, meaning that all types of people who belong to any type of social category will be able to have the opportunity to challenge the administrative state in court. As we revisit Lord Bingham’s sub-rules for the rule of law discussed above, we find that he identifies access to justice as follows: “[M]eans must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve.”227 226 227
Pettit, Republicanism, supra note 20, at 193. Bingham, Lecture, supra note 167.
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Notably, Bingham identifies cost and speed as key elements for access to justice. These factors play into the determination of whether someone will even bother to challenge the administrative state in court. These are crucial factors that are serious issues in many jurisdictions and will be addressed in the discussion about Access in the United States in Chapter 3 below. Beyond those factors that influence the decision to assert a challenge in court, there are also other procedural issues that need to be fully considered, such as rules concerning standing and basic time limits for filing claims. Ultimately, for there to be adequate access, we should look to find comparative norms for baselines and best practices to determine what reasonable expectations should be with respect to individuals having the right to reasonably commence and carry on their claims against the state within a framework of broader procedural fairness. For purposes of this study, inquiry about access focuses on those issues identified above, namely: (1) whether costs associated with exercising the contestation right are overly burdensome; (2) whether certain procedural rules unduly exclude certain groups from having access to court; and (3) whether the time from filing a claim to the time of final judgment is appropriate – after all, justice delayed is justice denied. i.
Systemic Access to Substantive Justice.
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While there may be procedural or other impediments to ordinary citizens being able to exercise their democratic right of contestation in an appropriate administrative litigation forum, one of the most daunting is simply how “inaccessible” – using the simplest conception of the term – the entire court system, including administrative litigation, can be to ordinary people. If one, as Richard Zorza, an American access to justice expert, asks and reviews “the interacting parts of the system”, we will soon see that virtually every administrative litigation system in the world is inaccessible for most people in a practical sense.228 Zorza cites a combination of factors that militate against ordinary people being able to approach the court process, including the following problems: 1. Overly complicated procedural and substantive legal rules governing access to justice; 2. Operational complexity of the courts that, in a practical sense, only allows experts to access them; 3. Professional licensure rules that create significant barriers to entry and thus limit access to the courts to a small group; 4. A system of professional rules and business models that make legal expertise prohibitively expensive for most people; and 5. Minimal public spending to support access of ordinary people to the court system.229
Richard Zorza, An Overview of Systemic Barriers to Access to Justice, RICHARD ZORZA'S ACCESS TO JUSTICE BLOG (Aug. 22, 2011), https://accesstojustice.net/2011/08/22/an-overview-ofsystemic-barriers-to-access-to-justice/ (last visited Sept. 10, 2018). 229 Id. 228
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Notably, Zorza claims that the American court system, when taken as a whole, is unconstitutional, as it violates due process for various reasons, including failure to comply with requirements of Boddie v Connecticut, 401 U.S. 271 (1971) since it requires people to use a legal system to obtain certain results, makes them pay for access to that system, and fails to provide alternative paths within the financial reach of those who need such access and do not have the resources to pay for it.230 The argument is not being made herein that there are constitutional deficiencies in any particular system of access to any particular administrative litigation fora. The argument is that in real, practical terms, accessing the justice system is not available to most people due to their lack of expertise and the cost in time, money and other resources that it takes to personally gain such expertise or purchase such expertise from legal professionals. This does raise theoretical, constitutional and real-world issues with court administration. The deficiencies noted by Zorza are by no means unique to the United States. These are issues faced in every nation of the world and have issues with providing meaningful access to justice. For while it is one thing to say that courthouse doors are open to all parties, the reality is that for any “meaningful participation before a neutral tribunal” to take place in
230
Id.
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accordance with notions of procedural fairness, “access to some form of competent legal assistance” is typically required.231 The reality is that large portions of the population of most countries do not have access to resources necessary to represent themselves in the complex world of legal disputes, including administrative litigation, nor do they have the resources to hire competent legal assistance.232 In some jurisdictions, many people simply do not have access to legal assistance due to social barriers or even the lack of legal professionals that they can reasonably get physical access to.233 Proposals and programs exist to solve these problems – this gap between those in need of legal services and the system they need to access to serve them. These include the following:
Promoting more less expensive ADR alternatives to litigation, including administrative litigation.
Creating alternative litigation venues with simplified processes for simple claims.234
Deborah L Rhode, ACCESS TO JUSTICE 185 (Oxford University Press 2004). See generally World Justice Project, Global Insights on Access to Justice (2018), available at https://worldjusticeproject.org/sites/default/files/documents/WJP_AccessJustice_April_2018_Online.pdf (showing results from polling of populations of 45 countries concerning, inter alia, their ability to pay for legal services, know where to find advice and other matters related to access to justice). 233 See, e.g., Elizabeth L. MacDowell, Reimagining Access to Justice in Poor People’s Courts, 22 GEO. J. POVERTY LAW & POL’Y 473 (2015) (discussing poverty and other barriers to people not only being able to access court but being able to receive fair treatment in the United States); see also R (Unison) v Lord Chancellor [2017] UKSC 51 (removing employment tribunal fees, ranging from £390 to £1,200 per single claimant, on the basis that such fees were unlawful due to their impact on access to justice.); Jan Miller, Tribunal Claims Rose After Fees Cancelled, 168 NLJ 7810, p. 4 (Sept. 27, 2018) (explaining how tribunal filings arose 165% in two months after the R (Unison) decision). 234 One model that could be used in many jurisdictions could be the triple layers of common courts in the City of Las Vegas in the American State of Nevada for ordinary private party claims. 231 232
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Government subsidizing or providing free access to legal aidtype services.
Increasing the number and type of legal professionals to include less expensive alternatives than lawyers.235
Providing an open day in court for citizens with legal enquiries.236
Such proposals exist in order to meet basic needs with respect to court access and are all compatible with the objectives of the democratic right of contestation – to provide access to all parties in a manner that puts them on equal footing to be dealt with fairly. In order for basic notions of fairness to attract, rather than repel, individuals from taking actions necessary to defend their rights against the administrative state, it is also important that we consider notions of proportionality.237 For all parties, it is critical that “the juice is worth the squeeze” by ensuring that, to the extent possible, cases are dealt with in a level of procedural complexity that is proportionate to the complexity of the issues, the importance of the case and the financial capacity of the parties.238 This includes making sure that cases are handled both “expeditiously and See generally Las Vegas Justice Court, http://lasvegasjusticecourt.us/ (last visited Sept. 11, 2018). This is discussed in more detail in Chapter 3. 235 This could include having more court clerks, volunteers, paralegals or other types of persons trained in the narrow areas of relevant procedure to assist ordinary citizens. 236 In Austria, each month the courts are open to ordinary citizens to come in and seek answers to the legal questions. Eva Storskrubb & Jacques Ziller, Access to Justice in European Comparative Law, ACCESS TO JUSTICE AS A HUMAN RIGHT 178, 192 (Francesco Francioni, ed., Oxford University Press 2007). 237 Id. at 192-94. 238 Id. at 193.
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fairly” with appropriate re-evaluations of procedure and case management brought to the fore.239 Only when people have real, meaningful access to both their neutral contestation venue can they truly be able to exercise their democratic right to contestation. ii.
Procedural Access to Justice.
Beyond the basic concerns of whether substantive access is meaningfully available to the people, there are certain procedural issues that also have to be analyzed from the perspective of the citizen claimant. These include rules concerning standing and reviewability of cases. Such concepts are touched upon below. (1) Standing. Regardless of the type of justice one is seeking or the venue one is seeking it in, the most fundamental question in any access to justice assessment is, who has the right to bring a case?240 This is ultimately a question of who has standing to initiate a case, or in some instances, initiate an appeal. In some instances, complex rules of standing can bar individuals, groups of individuals, NGOs, corporations or even some types of public law entities from being able to initiate an action. Such rules often have to do with the type of entity that is
Id. Martin Scheinin, Access to Justice before International Human Rights Bodies: Reflections on the Practice of the UN Human Rights Committee and the European Court of Human Rights, ACCESS TO JUSTICE AS A HUMAN RIGHT 135 (Francesco Francioni, ed., Oxford University Press 2007). 239 240
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seeking to undertake legal action. Sometimes entities or groups, particularly unrecognized entities or groups might lack standing to pursue a claim. Apparently, the narrower the definition of parties allowed to pursue claims might be, the less likely it is that those impacted by government actions may be able to challenge such actions through administrative litigation or other formal means of democratic contestation. That often leads them to have to pursue informal means, such as protests and media campaigns. In most cases, standing is not so much of an issue of group or entity association but tends to hang moreso on whether the person, entity or group trying to bring a claim can prove that it is an adequately interested party. This typically requires some proof of legal interest,241 such as a present injury in fact242 or some strong likelihood of injury in the future. Different jurisdictions take more or less restrictive approaches to standing, particularly in the administrative litigation context. By way of example, Canada has a system of standing in administrative law that can be both narrow or wide, depending on the circumstances. Typically, standing to apply for judicial review is governed by the statute under which appeals are being brought – some statutes are quite narrow while others offer broad standing possibilities. Interestingly, Canada has developed
241 Article 12 of the ALA specifies that a “legal interest” is required in order to have standing in Korea. 242 Injury in fact is a term of art in American standing jurisprudence. That concept raises complex questions in many administrative disputes in America. Funk et al., supra note 225, at 411-12.
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a very open type of standing called public interest standing. Such standing allows individuals to assert both constitutional and non-constitutional claims against state action. In a landmark 1986 case, the Supreme Court of Canada held that an individual lacked standing to challenge the legality of a federal welfare cost payment scheme for lack of “sufficiently direct, personal interest in the legality” of the relevant payments to challenge it under normal statutory standing rules.243 However, the Canadian high court held that courts could exercise discretionary authority to recognize his standing to sue and seek both injunctive and declaratory relief as a matter of public interest. Such standing is available when ordinary standing rules cut off the right to make claims but there is sufficient public interest to proceed to challenge the state with respect to challenging constitutionality of legislation, as well as making challenges on the general legality of public expenditures or other administrative actions.244 This Canadian case highlights the narrow constraints found in many standing rules but also illustrates that there are broader approaches to standing possible in some jurisdictions. For one who is seeking to exercise the democratic right of contestation, technical rules of standing can often stand in the way of meeting the purpose of doing justice necessary to challenge arbitrary state action. Of course, a line 243 244
Finlay v. Canada (Minister of Finance) (1986), 2 S.C.R. 607 (Can.). Id.
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must be drawn that keeps frivolous claims out of court. Another line must be drawn that makes it so only those with at least some type of recognizable interest may bring actions against the state. In the democratic contestation world, such a recognizable interest would be the right of the person to exercise personal autonomy necessary to enjoy liberty interests, including mundane interests subject to ordinary administrative action, as well as fundamental rights. (2) Reviewability. In order for an administrative act to be challenged, it must be reviewable. Whether a matter is reviewable is a multipronged question, which includes whether the party has standing, and the court has jurisdiction over the matter at issue.245 Those are general requirements of any cause of action. In the administrative litigation context, the trigger for administrative litigation generally has to be an administrative act or what is termed an “agency action” in the United States,246 a disposition in Korea247 or some similar type of administrative act. The type of action challenged must be of the type that is subject to review by a court. Some types of action are simply left to
See, e.g., ALA, art. 9 (setting forth jurisdictional requirements in Korea). Funk et al., supra note 225, at 408. 247 ALA, arts. 1-3. 245 246
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administrative actors’ discretion and cannot be challenged. Other types of actions may be excluded from review for other policy reasons.248 One of the most notable differences between the United States and Korea is the fact that prevailing opinion in Korea is that only those actions defined as “dispositions” may be reviewed by the courts via administrative litigation. This is reflective of the jurisdictional rules within the ALA, which specify that only dispositions are subject to challenge.249 Notably, dispositions have a limited definition that includes only “the exercise of public authority, the denial of such authority” or other “administrative action in the application of laws and regulations to a particular fact by an administrative agency.”250 Given the emphasis on application of a rule giving rise to jurisdiction, generally Korean courts do not have authority to utilize judicial review functions with respect to agency uses of rule-making powers.251 Indeed, historically they have not been able to engage in direct review of rulemaking processes,252 which is a clear contrast with their American counterparts who
Funk et al., supra note 225, at 408. See ALA, art. 9. 250 KAPA, art. 2(2). 251 Tae-Huan Kum (alt. Keum) [금태환], A Study on the Judicial Review of Rule-Making of the Administrative Agency in the United States [미국 행정입법의 사법심사에 관한 연구 ―요건․심사범위․한국법과의 비교를 중심으로] 314 (Aug. 2003) (unpublished Ph.D. dissertation, Seoul National University) (on file with author) [hereinafter “Keum, Rule-Making”]. 252 Id. 248 249
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may engage in direct review procedures “to discern whether agency rules have been validly promulgated, amended, or repealed.”253 With respect to reviewable actions, there are typically other types of requirements for reviewability of a matter, including, for example, the American requirement that an agency action be final prior to a claimant challenging such action.254 American courts also require an exhaustion of administrative remedies have taken place prior to a court stepping in.255 Other jurisdictions have their own procedural requirements, such as Korean requirements that generally limit review of rulemaking only with narrow exceptions.256 What is important for our purposes is to recognize to the extent such requirements can be justified as being necessary to provide an orderly basis for challenging arbitrary action and to what extent they serve as oppressive obstacles to legitimate exercises of the right of democratic contestation. 2.
Adequacy of Treatment in the Contestation Forum. i.
Judicial Independence.
One of the most controversial issues in republican theory and broader legal and political discussions about constitutional structures is this question: How independent should judicial bodies be? In the English conception of Todd Garvey, A BRIEF OVERVIEW OF RULEMAKING AND JUDICIAL REVIEW Summary (Congressional Research Service Mar. 17, 2017). 254 Funk et al., supra note 225, at 409. 255 Id. at 410. 256 See Keum, Rule-Making, supra note 251, ch. 3. 253
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democracy, the legislative branch has ultimate supremacy and exercises independence from and dominion over the executive and judicial parts of government. In the United States, the judicial branch exercises independence from, and thus supremacy and dominion over, the executive and legislative branches in areas deemed to be constitutionally only within judicial purview. The two prior sentences are oversimplifications, but they indicate that two old democracies take very different approaches to how the judiciary interacts with other elements of the state apparatus. As discussed in Chapter 1, this study accepts the argument that judges and the judicial branch should enjoy a great deal of independence as necessary to support their neutrality. Within Pettit’s framework, this requires that they be autonomous and depoliticized.257 He makes this assertion for all types of contestation that go before formal bodies, ranging from parliamentary committees to quasi-judicial tribunals.258 Administrative litigation courts clearly fit within this category and should have their autonomy and political independence assured. While Pettit points to the need to have depoliticized decision-makers addressing complaints, he is scant on the details of how to achieve such a thing outside of criminal law. Given that the focus of this study is administrative litigation, it is helpful to focus on the nature and determinants of judicial independence or, more precisely, how to reduce political influence 257 258
Pettit, Republicanism, supra note 20, at 196-97. Id. at 196.
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on the judiciary. John Ferejohn et al. take a more comprehensive look at this issue in their 2004 work entitled Comparative Judicial Politics.259 For purposes of this study, a few key highlights of that work are identified herein. First, Ferejohn et al. start by contrasting the United States, where judicial independence is “taken for granted” with European systems that have had trouble divorcing themselves from “the Rousseauian notion of the ‘sovereign assembly….”260 General European skepticism of a politically strong judiciary was summed up by Carl Schmitt, [who] opposed judicial review on grounds that it would lead to both judicialization of politics and politicization of the judiciary.”261 Regardless of such reservations, both civil law and common law systems have developed different theoretical bases and legal underpinnings for judicial review. Despite their theoretically different underpinnings, leading jurisdictions categorized within both systems have developed strong forms of judicial review.262 Common law systems use the rule of law together with the doctrine of ultra vires as the foundational principles for judicial review of administrative actions. The rule of law requires that all administrative actions
259 John Ferejohn et al., Comparative Judicial Politics (2004), available at http://ssrn.com/abstract=115412 (this appears to be an electronic version of a chapter printed in THE OXFORD HANDBOOK OF COMPARATIVE POLITICS (Carles Boix & Susan C. Stokes, eds., 2009) with, of course, different pagination from the book chapter). 260 Id. at 1. 261 Id. (citing Alec Stone, THE BIRTH OF JUDICIAL POLITICS IN FRANCE: THE CONSTITUTIONAL COUNCIL IN COMPARATIVE PERSPECTIVE (Oxford 1992)). 262 Singh, supra note 87, at 122-35 (comparing basic principles and scope of judicial review in common law theory and Germany).
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have underlying legislative authorization and the ultra vires theory allows courts to strike down administrative actions taken outside of the scope of the authorizing legislation. As with much of the common law, such principles do not find their basis in any particular statute.263 In the leading civil law jurisdiction of Germany, the basic tenet of the rule of law is expressly provided for. All branches of government are subordinated to the basic rights delineated the Basic Law and the executive bound to law and justice.264 The Basic Law provides that when “rights [are] violated by public authority” the person who is subject to such violation may have recourse to a strong, independent judiciary.265 Such right to judicial review is codified in Section 40 of the Code of Administrative Court Procedure (Verwaltungsgerichtsordnung [VwGO]) and the sixth chapter of such code provides wide authority to German administrative courts to conduct judicial review.266 Like Germany, Korea provides clear constitutional and legislative bases for judicial review to protect to ensure the rule of law, particularly in the administrative context. Before examining the application of judicial review further, for purposes of this study it is critically important to understand that judicial review falls into two broad categories:
Id. at 122. Id. at 123. 265 GG Article 19 IV. 266 See VwGO Sections 40-53. 263 264
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1) Statutory Judicial Review: The method whereby courts “may determine that actions by regulatory agencies or ruling by lower courts are inconsistent with existing law.”267 2) Constitutional Judicial Review: The method whereby courts are “empowered to rule on the constitutionality of legislation itself.”268 Different jurisdictions take divergent attitudes with respect to (a) whether their courts (or quasi-judicial bodies) are allowed to engage in one and/or the other type of judicial review; and (b) which bodies are allowed to make such determinations. For example, in the United States, all federal courts and most state courts of general jurisdiction are empowered to conduct both types of judicial review. In Korea, the ordinary courts within the judicial branch can engage in statutory judicial review while constitutional judicial review is jurisdictionally divided between the Supreme Court and the Constitutional Court.269 While in most instances administrative litigation is concerned with statutory judicial review, there are many cases wherein administrative rules and acts are themselves able to be challenged on constitutional grounds. Therefore, both types of judicial review need to be available in order for there to be a strong contestation right for a citizen engaged in administrative litigation. The difference of the potential political impact of statutory judicial review versus constitutional judicial review is profound. With statutory judicial Ferejohn et al., supra note 259, at 3. Id. 269 대한민국헌법 [Constitution], art. 107(2) (S. Kor.). 267 268
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review, if a court rules that an administrative agency or some other government actor has written regulations, made a ruling or taken an action that is not deemed to be legal, then the legislature has the option to override the court’s judicial review ruling with new legislation. With constitutional judicial review, when the court strikes down a law, it is typically much more difficult to override the court’s ruling. In most jurisdictions such rulings take on the import of the constitution itself and can only be overturned with cumbersome processes that amend the constitution or allow for the reconstitution of the court. Typically such procedures are so difficult to effectuate that once a court has determined that it controls that subject under constitutional means it can rightly be said that the court is now sovereign over such issues and they have been “driven off of the democratic stage.”270 Notably, Ferejohn et al. assert that the ultimate measure of the strength of a judicial review body’s autonomy is “[w]hether or not legislative coalitions are sufficiently large to either amend the constitution or to reconstitute the court….”271 In more practical terms, what makes Pettit’s ideal of depoliticized judicial review possible is building up the “institutional capacities of courts to act See, e.g. The Federalist Society and American Constitution Society, Antonin Scalia and Stephen Breyer, hosted by the Federalist and the American Constitution Societies, YouTube (Dec. 5, 2006), http://www.youtube.com/watch?v=qjAYuMLDGyI (wherein, after the 34 minute mark, Justice Scalia criticizes overreaching judges by, inter alia, stating that the only exception to democratic principle of majority rule should be those items found in the Bill of Rights and that any judge that goes beyond the “original meaning” of the Bill of Rights is “adding to those subjects that are driven off the democratic stage.”). 271 Ferejohn et al., supra note 259, at 4. 270
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independently of political actors.”272 Of course, the strength of legislative coalitions can have enormous influence on such independence. Additional factors are also important in determining the strength of the political independence of courts, including administrative litigation bodies. These include:273 1) Strength of Judicial Review Authority: Whether courts have the authority to both (a) enforce and (b) review and overrule legislative statutes. More authority makes the court more independent. 2) Term of Judicial Appointment: Whether judges are appointed to a life term or a long term. The longer the appointment, the stronger the judge’s independence will be. 3) Salary Protection: Whether judges can have their salaries cut or raised based upon political factors. This can be a significant political tool. Judicial autonomy demands salary protection. 4) The Difficulty of Changing Court Composition: Whether it is possible to pack a court or otherwise change court composition in a relatively brief period of time. If other political actors can easily change court composition, it makes judges less likely to act contrary to the perceived will of such political actors. 5) Level of Political Fragmentation: Whether executive and legislative bodies are politically fragmented. If there is a high degree of fragmentation then courts are more likely to assert themselves into political questions but if there is strong party or coalition hegemony over the other branches of government, then courts are less likely to assert themselves. 6) Jurisdiction: Whether jurisdiction of the court is firmly set (such as by a constitutional provision) or it is malleable at the 272 273
Id. at 1. Id. at 1-6.
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will of outside political actors. The more that outside political actors can grant or take away jurisdiction, the more likely it is that the court will try to appease such outside forces.274 7) Additional Factors: Whether courts or outside political forces can make court personnel decisions, determine case selection, set decision rules and other factors that impact the actual work done by courts. When analyzed in composite, and in some cases on an individual level, the above-listed factors can have profound influence on determining how independent a court can be. Of course, some are more potent than others. For example, by explicitly prohibiting judicial review in their constitutions, Switzerland, Belgium, and Luxembourg have neutered their courts.275 Additionally, lack of political fragmentation – meaning strong political cohesion – is an incredibly powerful force that has politically tamed courts ranging from Argentina276 to Japan.277
The United States Congress and other legislative bodies around the world are quite adept at using this tool to safeguard pet issues or even punish courts for overstepping perceived bounds of appropriate judicial action. 275 Ferejohn et al., supra note 259, at 12. 276 See id. at 10-11 (noting the stark contrast between the activist court from 1862 to 1946, when Argentina’s politics where extremely fragmented, with the sudden docile nature of the Peron era, a time of strong political cohesion). 277 As Tom Ginsburg relates, “those who anticipate losing elections,” face significant “agency costs from bureaucrats” and thus may seek to empower bureaucrats to monitor the overtly political branches of government by creating procedural rights that are judicially enforceable by the constituents of politicians. Tom Ginsburg, Dismantling the “Developmental State”? Administrative Procedure Reform in Japan and Korea, 49 AM. J. COMP. L. 585, 617-18 (2001). Such a process allows the politicians from parties that are out of power to benefit their constituents and monitor the failures of administrators to follow the law. Given the relative uncertainty future holds on power for Korean rulers versus their counterparts in Japan, we have seen a greater tendency for Korea to empower the bureaucracy than in Japan, as provided in Ginsburg’s theory. 274
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As for depoliticizing courts, which is Pettit’s ideal condition,278 the best method cited in literature is to require large legislative supermajorities to appoint judges, which requires political compromise that leads to politically fragmented, balanced or neutral court compositions. In order for them to be effective, they must still have enough of the indicia of independence present in order to properly check the ability of the administrative state to oppress the people. Given that there is not one clear method for assuring independence, this issue will be discussed in the context of England and Germany below. Then it will be further dealt with in discussions of American and Korean judicial structures in Chapters 3 and 4, respectively. (1) Comparative Example: England. The anomalous constitutional nature of England is such that it impacts what could be seen from a statutory perspective as a system that safeguards the rights of the people from a structural standpoint. To the extent that administrative law and administrative litigation is tied to constitutional law and structures, it is necessary to at least introduce the structure and defects, at least from the standpoint of this study, of the English system. While this may seem like a bit of a detour, the English system’s singular features help to
278
Pettit, Republicanism, supra note 20, at 196.
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highlight the perceived need in other leading democracies to have set up judicial structures that are much more powerful than those of England. The English system of constitutional structures and administrative law serves as a good point of contrast with Korea, the United States and other jurisdictions that embrace written constitutions and robust judicial review to constrain the apparatus of state and protect the rights of the people. Notably England has no meaningful separation of executive, legislative and judicial powers that also affords significant checks and balances. Indeed, until recently, all three powers were housed in Parliament under an arrangement that was the result of a millennium of constitutional evolution that featured the creation of a parliamentary system. Such system has changed from one that at first was meant to counsel the monarch and adjudicated disputes of the people, to one that took over legislative functions while leaving the monarch as a functional executive, to a system in which the monarch has become little more than a figurehead with theoretical powers of any significance and Parliament answers to no other part of government (except for the people). The English subjugate the judiciary to the legislature in a manner that makes the sitting Parliament the final authority on all constitutional matters. The ultimate effect is that there is no domestic body that serves as a strong check on Parliament’s exercise of powers.279 This majoritarian supremacy European Commission for Democracy Through Law (Venice Commission), STUDY ON INDIVIDUAL ACCESS TO CONSTITUTIONAL JUSTICE (Jan 27, 2011), available at 279
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makes it so that the British system is fundamentally more “democratic” than the other systems discussed herein – democratic in the thin sense of majority rule but quite non-democratic in the sense of providing necessary element to support a vigorous right of contestation. Indeed, majoritarian impulses can and have ruled in England relatively unfettered for countless generations. As a result, an argument can be made that England has the least robust system for protecting civil or human rights when compared with Korean, American, German or other leading democratic systems. Another distinguishing element of the English system is that it lacks a comprehensive written constitution that serves as the supreme law of the land; for the will of Parliament is ultimately the supreme law on most matters.280 This means that the English system does not have any written supreme charter of human rights that can stand as a total check against government intrusions on individual rights.281 Furthermore, the lack of a supreme written constitution means that Parliament can ultimately determine the structure and power of all organs of state, including domestic courts. On the positive side, such features may seem like flaws, the British system has managed to adapt to http://www.venice.coe.int/docs/2010/CDL-AD(2010)039rev-e.pdf (providing overviews and analysis of constitutional review systems in Europe and in various countries around the world). 280 Of course, the continually growing body of European Union-based directives, court cases and obligations can and do override Parliament and provide what amount to constitutional checks on the power of British legal and political institutions. See Bingham, Judges, supra note 212. 280 The Supreme Court, http://www.supremecourt.uk (last visited Sept. 12, 2018). The future of such EU-based checks is uncertain with Brexit pending. 281 It is important to note that the UK does have domestic laws protecting human rights – they do not constrain Parliament. The only real constraint on Parliament with respect to rights comes from international institutions in which the UK is a member.
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changes for almost a millennium in a manner that has proven to be robustly representative of the people and has also kept the judiciary from engaging in any overwhelming judicialization of politics. On the negative side, the only domestic constitutional check on tyranny of the majority is the ballot box. Lest we place too much credence in voters, it is important to remember that elections do not do a very good job of protecting individual or minority rights and can often lead to further abuses thereof. In response to criticisms of the weak British judiciary and in the face of hundreds of years of tradition, the United Kingdom took a timid but controversial step towards a strongly independent judiciary when it moved its highest judicial appellate functions from the House of Lords to a relatively newly formed British Supreme Court in 2009. The court “is the final court of appeal in the UK for civil cases, and for criminal cases from England, Wales and Northern Ireland. It hears cases of the greatest public or constitutional importance….”282 While the British Supreme Court is now the highest judicial court in England for most matters in all of the United Kingdom, it still lacks the comprehensive power to conduct any meaningful constitutional review and strike or alter laws.283
The Supreme Court, supra note 209. Adam Wagner, Does Parliamentary Sovereignty Still Reign Supreme?, UK Human Rights Blog (Jan. 27, 2011 6:58 PM), http://www.guardian.co.uk/law/2011/jan/27/supreme-court-parliamentarysovereignty (last visited Sept. 12, 2018). 282 283
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Despite the weakness of British courts, there is some concern that, in connection with the institution of a high court outside of Parliament, judges may increase their legal power and encroach on the political realm, thus undermining the longstanding formulation of English democracy with American-style juristocracy.284 There is concern that courts may, in the name of checking majoritarian excesses in order to protect human rights and the rule of law, undermine the preeminence of English representative democracy. As things stand now, Parliament’s legislators, including those exercising the executive functions of government ministers,285 exercise total supremacy in England with respect to both determining constitutional structures and defining constitutional values. Parliamentary power is effectively checked only via treaty obligations, particularly those involving the European Union and the Council of Europe.286 Even with such treaty-imposed limitations, 287
Ran Hirschl, a Canadian comparative constitutional scholar, disapproves of the global rise of judicial power at the expense of the consensual majoritarian focused type of democracy, what he terms “jursistocracy.” Ran Hirschl, The Political Origins of the New Constitutionalism, 11 IND. J. GLOBAL LEGAL STUD. 71 (2004). 285 Under the British system of government, “[t]he executive of England is in fact placed in the hands of a committee [of Parliament] called the Cabinet. If there be any one person in whose single had the power of the State is placed, that one person is not the King but the chairman of the committee, known as the Prime Minister.” Albert Venn Dicey, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION 8 (6th ed. MacMillan & Co., Limited 1902) (1895). 286 See Karen Alter, Too Much Power for Judges, KEY CONTROVERSIES IN EUROPEAN INTEGRATION 79, 82-4 (Hubert Zimmermann & Andreas Dür, eds., Palgrave Macmillan 2012) (discussing the development of the doctrine of supremacy of both Council of Europe-based and European Union-based treaty obligations and court rulings over national laws). 287 Of course, even treaty-imposed international limitations are constitutionally voidable by Parliament and/or national referendum, which supremacy has been playing out in the Brexit saga. It is the probable result of Brexit that EU-created rights for British citizens “will vanish”. Douglas-Scott, Sionaidh, Brexit Judgment Reinforces the Supremacy of Parliament, GUARDIAN (Nov. 6, 2016), https://www.theguardian.com/politics/2016/nov/06/brexit-high-court-parliamentgovernment-law (last visited Sept. 6, 2018). 284
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Parliament is the embodiment of sovereignty over law and has full authority over virtually all constitutional matters. Ultimately, Parliament makes, enforces and determines the scope of its own powers, as well as those of all other organs of state. Such a system “leav[es] the cessation of unconstitutional acts at the discretion of [the] constitutional body which created them.”288 Although proponents of Parliamentary power may not like to hear this, it is hard to dispute that allowing any “politically motivated organ[]” with such discretion to have ultimate authority will “deprive[s] constitutional safeguards of their legal effectiveness.”289 Indeed, without having any form of constitutional judicial review and only a weak form of statutory judicial review (due to the lack of political fragmentation under the Westminster system), English courts have little capacity to act as guardians of the liberty of the people. While extremely “democratic” from a consent point of view the British tradition of constitutionalism has at times failed from a contestation point of view. It has repeatedly failed to uphold rights of the people in times of trouble or otherwise check excessive uses of governmental powers in a manner that is consistent – for example, a preeminent British jurist made the comment in 2009 that unchecked power in the hands of Parliament has led to various
288 Thilo Tetzlaff, Kelsen’s Concept of Constitutional Review Accord in Europe and Asia: The Grand Justices in Taiwan, 1 NAT’L TAIWAN U. L. REV. 75 (2006) (describing Hans Kelsen’s views on the dangers attendant to leaving constitutional review authority in or near a legislative body). 289 Id.
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abuses and has made “the British … the most spied upon people in the democratic world.”290 Such problems are not new. Indeed, the lack of constitutional oversight with respect to legislative and executive acts has been a recurring problem in British history. It is with such deficiencies in mind that the Framers of the American Constitution instituted a very different form of government from that of their former colonial masters to protect what they originally deemed to be their fundamental rights, the “rights of Englishmen.”291 They realized that they needed to create structural barriers to the exercise of abusive legislative and arbitrary executive power in order to protect the very rights they had learned to cherish under the English system. This very real need led to the creation of a very different constitutional framework in the late 1700s – one that tried to borrow the best traditions of English government, such as the democratic representation and notions of the rule of law. Additionally, the American constitutional Framers sought to build up new structures that they felt could better protect rights they felt should be beyond impairment by any government. After much study, deliberation and debate, they instituted a supreme written constitution that contains core elements meant to diffuse power and
Bingham, Judges, supra note 212. Library of Congress, The American Revolution, JOHN BULL & UNCLE SAM: FOUR CENTURIES OF BRITISH-AMERICAN RELATIONS (Jul. 22, 2010), http://www.loc.gov/exhibits/british/brit-2.html (last visited May 28, 2018). 290 291
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make it less likely to be abused, including separation of powers into three branches of government, federalism and, upon passage of initially agreedupon amendments, enumerated rights of the people that would breathe life into a thicker notion of the rule of law. It is that American system that serves as the forerunner of all modern written constitutional systems, including those of Korea, Germany, France and all other leading constitutional republics – including Japan, which is notorious for its politically weak courts.292 Each such system provides for stronger separation of powers and, resultingly, more judicial independence than does England. Not only does England suffer from a deficiency of constitutional separation of power and resultant weakness of its courts, its administrative tribunals system is a jumbled mass of incoherently created bodies. In all fairness, as with so many other oddities of English court system, the tribunal system is “complicated and – in places – confusing, because it has developed over 1,000 years rather than being designed from scratch.”293 Nevertheless, it is still “‘unstructured’ and in need of reform”294 Parliament has created a system of about 70 different tribunals to serve as less formal alternatives to court. Although that may sound appealing to some, the lack of regularized
See Ginsburg, supra note 277, at 617-18. Courts and Tribunals Judiciary, Structure of the Courts & Tribunal System, https://www.judiciary.gov.uk/about-the-judiciary/the-justice-system/court-structure/ (last visited June 2, 2018). 294 Martina Künnecke, TRADITION AND CHANGE IN ADMINISTRATIVE LAW: AN ANGLOGERMAN COMPARISON 19 (Springer 2007). 292 293
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criteria for the selection of subjects that should be part of the tribunal system is problematical for a few reasons. First, different subjects and the rights attached to them get distinct levels of procedural protections. Second, the tribunal system is seen as arbitrarily undermining the authority of independent courts, as matters heard before tribunals often “oust the jurisdiction of ordinary courts….”295 This defect preclude[s] judicial review on the grounds of lack of jurisdiction, irregularity, error of law, breach of natural justice and any other matter. These are the very areas in which the higher courts have repeatedly been called on to assert the sovereignty of the law.296 Given the patchwork quilt of procedures found in the tribunal system and limited nature of judicial review available to police such system, it is entirely reasonable to find that such system “is contrary to the rule of law.”297 Although the English system does attempt to provide constraints on state actors and remedies for violations by administrative agents of the state, the lack of coherent jurisdictional rules, failures within to provide procedural safeguards for the rights and liberties of the people and lack of consistent structural independence of the tribunal system is severely troubling. (2) Comparative Example: Germany.
Johan Steyn, This All-powerful Government is Prone to Creeping Authoritarianism, GUARDIAN (Apr. 22, 2006), https://www.theguardian.com/commentisfree/2006/apr/22/comment.humanrights (last visiting June 2, 2018). 296 Id. 297 Id. 295
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On the opposite end from England on the structural coherence scale is where we find Germany. German constitutional structures place a premium on judicial independence, as well as the rights of the people to engage the state through judicial apparatus or even engage in outright rebellion if necessary to protect the constitutional order. As with the English system, the German system is a product of its history. There is no doubt that the massive failings of all organs of the state, particularly politically captured judiciary, to check Hitler’s horrific rise to power and his disastrous excesses thereafter cast a long shadow across the entire German state today.298 That shadow was even darker when the Basic Law was drafted. Accordingly, it is no wonder that Germany, like its once fascist ally Italy, has placed strong judicial controls over the legislature and the administrative state within its constitution, the Basic Law.299 Additionally, it is not surprising that the independence of the courts that oversee the political branches of the German government is quite robust. As for judicial review, the German system provides for both statutory and constitutional judicial review, both of which can impact, and serve as checks on, state actors. Chapter IX of Germany’s Basic Law establishes in detail both 298 It is important to remember that Hitler was put in power by manipulation of democratic consent and a lack of strong institutions to check excesses of such system certainly did not help to check the rise of Nazism. 299 As Ferejohn et al. have noted, “Italy and Germany seem to have adopted constitutional courts partially in response to ‘a deep distaste for the dismal past’ and to guard citizens against the possibility of a political hijacking of the sort that Mussolini and Hitler had been able to pull off.” Ferejohn et al., supra note 259, at 13 (citations omitted).
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ordinary federal and Länder court structures and its Federal Constitutional Court (the “German Constitutional Court”). Ordinary people have the right to challenge German state actors in such venues. Article 93 specifically provides that “any person alleging that one of his basic rights” or certain other identified rights “has been infringed by public authority” may file a constitutional complaint with the German Constitutional Court. This provides a forum to challenge state encroachment on or denial of relatively high-level rights. Germany’s highly structured constitutional and statutory judicial framework provides a very strong system of procedural and substantive judicial review. This is ensured by strong procedural and structural safeguards that ensure the independence of both the German Constitutional Court and ordinary courts. Furthermore, with the establishment of administrative courts, it provides for a system of expertise in administrative legal matters that is likely to safeguard the liberty and fundamental rights of the German people. The German system stands in stark contrast to the severe lack of judicial independence and related weakness of the laws underlying judicial review of any decisions, including administrative acts, in the English system. ii.
Procedural Fairness.
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The concept of procedural fairness is essentially the same as procedural due process, as commonly understood, with some permutations that deserve some attention. Given that the general linkage between due process and the broader contours of republicanism and the theory of contestation were addressed in subchapter 2.B.3 above, there will only be a specific identification of elements one needs to implement in order to fully operationalize the Procedural Fairness element of the Implementation Criteria: Beyond basic notions of procedural due process in a contestation forum, there must be safeguards to ensure that procedures at every step that the claimant encounters the state meet fundamental notions of fair play and equal justice. So, we are concerned not only with procedural fairness in the judicial review phase but also in every other organ of state, including all administrative agencies, that touch the matter prior to its arrival at court in a democratic contestation claim. Additionally, the forum of contestation needs to have the right to inquire about and make determinations concerning the validity of the substantive decisions and resulting actions taken by the state. So, the administrative litigation court or another forum that serves to hear a democratic contestation claim should have rules that (a) force it to follow the basic contours of procedural due process, with an eye towards impartiality;300 (b) support its power and independence sufficiently to both (i) determine if
300
Kumm, Legitimate Authority, supra note 26, at 29.
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state actors have complied with procedural due process norms and (ii) remedially force such state actors to comply with such norms;301 and (c) provide it with the power to determine whether there is reasonable substantive justification for the contested actions that have been taken by state actors. In other words, the court should be able to test the reasoning behind any state action that burdens a contestation claimant and provide a substantive basis to alter, strike down or demand compensation for any action that is not “justified in terms of public interest.”302 Only with all of the elements of Procedural Fairness in place is it possible for a contestation forum to fully and properly safeguard the rights and liberty of the people. iii.
Adequacy of Administrative Litigation Remedies. (1) Remedies within the Democratic Right of Contestation.
The whole purpose of the democratic right of contestation is to provide a means whereby individuals may challenge the state and, if the complainant is successful, to have the state constrained to observe the legal rights of the individual making the complaint. The only way for the exercise of such a right to be substantively meaningful is for the right to result in the complainant receiving relief from the arbitrary or otherwise oppressive state Id. Obviously, this element also implicates the need to have remedies available that can force compliance. 302 Id. at 30; see also id. at 3-4, 16-8, 28-30 (implying the necessity of substantive review by describing the imperative that judges be able to ask about the reasoning behind state actions that are challenged). 301
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action at the heart of the applicable administrative litigation. In other words, the remedy is the objective or the ends for which all of the other elements of contestation described herein are simply means. According to Pettit, for a remedy to be satisfactory, it must require that the offending “public body … alter its decision and perhaps provide some compensation.”303 Notably, Pettit focuses remedies on needing to get the state to alter its behavior in the future and monetary compensation is a secondary consideration. This is a critical point, as, for example, common law systems of litigation remedies, including administrative litigation remedies, often have a strong bias towards monetary damages. Only if such damages are not adequate will a typical American or other common law court provide for other types of relief. As discussed in more detail below, the German system takes a different approach, placing rescission and mandamus-like remedies at the forefront of administrative litigation remedial options. In the below discussion of administrative litigation remedies, emphasis is placed on specific remedies that are made available in order to operationalize the right of contestation to the fullest extent possible. This is done in this subchapter by getting beyond theory and analyzing specific remedies available in England and Germany. American remedies will be discussed in more detail in part iv of subchapter 3.B.2 and Korean administrative
303
Pettit, Republicanism, supra note 20, at 197.
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litigation remedies will be discussed in greater depth as a matter of particular focus and heightened analysis in subchapter 4.C Our review of non-Korean jurisdictions discussed in this study will demonstrate that they generally provide a full range of administrative litigation remedies to check the arbitrary use or non-use of state action or other oppressive behavior. As demonstrated in the basic comparative benchmarking analysis of such jurisdictions, administrative litigation remedies should provide courts the power and authority to (1) compel public officials to act in the future; (2) prohibit public officials from action in the future; (3) void administrative action; and/or (4) award monetary compensation for public torts (hereinafter, “Remedial Criteria”). A jurisdiction that both (a) legally provides such remedial power to its courts and (2) has courts that actually utilize them to compel state compliance with the law should be considered to be one that complies with the basic demands of democratic contestation. Furthermore, such failure also implicates noncompliance with a key aspect of the rule of law – the requirement for an adequate remedy304 – and makes it so
One method for determining compliance with the rule of law is elucidated by the 2011 report of the European Commission of Democracy through Law (the “Venice Commission”) entitled Report on the Rule of Law. In such report, the Venice Commission sets forth an easy-to-follow, yet fairly comprehensive “[c]hecklist for evaluating the state of the rule of law in single states” contained in an annex. European Commission for Democracy through Law (Venice Commission), REPORT ON THE RULE OF LAW 15-6 (Apr. 2011). One of the key questions the commission proposes for evaluating whether a state has established the rule of law is this: “Does the judiciary have sufficient remedial powers?” Id. at 16. While the report fails to describe what sufficient remedial powers might be and the commission that issued it has focused on procedure more than the substance of remedial measures, it should be clear that such remedial powers 304
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administrative agencies can then continue to act arbitrarily or in otherwise oppressive ways. (2) English and German Administrative Litigation Remedies. (a) English remedies are robust. Over the past millennium, English courts have been some of the most innovative in the world. They have innovated with respect to substantive and procedural rules. Long before most other countries were considering using courts to tame their public administrators, “[i]n the seventeenth and eighteenth centuries, [writs of] mandamus and certiorari were used to supply the basis for judicial review of administrative acts” and for review of lower courts. 305 As we can see from that, England has a long history of administrative litigation and it has developed sophisticated remedial tools over that time.
include powers that would be used by courts to constrain state action and necessarily include remedies available through administrative litigation. The European Convention on Human Rights (“ECHR”), Article 13, states, “Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity”. This statement is a statement of rights for all people and the need of governments to provide for administration litigation remedies extends beyond Europe. It should extend to protect all people of the world. Furthermore, beyond the need to protect only ECHR-provided rights and freedoms, such remedies should be made available to protect all material legal rights and freedoms, as well as reasonably substantive privileges, that could be impaired by administrative action. 305 Langbein et al., supra note 129, at 444-45.
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The English judicial review system provides the following “full complement of remedies”306: (i) (ii) (iii) (iv) (v) (vi)
Mandatory order[, which] compels the performance of a duty. Prohibitory order[, which] prevents the performance of any act. Quashing order[, which] quashes a decision which has been made. Declaration[, which] which will simply set out a legal position. Injunction[, which] is the same remedy as available in civil cases. Monetary compensation[, which is the] … general right to compensation for loss caused by public bodies or officials.307
Notably, the English system only awards monetary compensation if a law explicitly allows such an award, most commonly for malicious or intentional torts.308 It is also important to note that of the remedies listed above, the declaratory action is an interpretive tool not truly remedial in nature. Thus, the general categories of remedies that we find in England can have the following impact and, along with those found in Germany and the United States below, can serve as a benchmarking jurisdiction for other systems looking for administrative litigation Remedial Criteria. Any jurisdiction that
Raymond Youngs, ENGLISH, GERMAN & FRENCH COMPARATIVE LAW 103 (2d ed. Routledge-Cavendish 2007). 307 Id. 308 Id. at 426-28. Notably, the European Court of Human Rights has specifically ruled that Article 13 of the European Convention of Human Rights provided bases for individuals to be compensated in tort. Additionally, under Article 288 of the European Community Treaty has been found to obligate Member States to “make good damage to individuals caused by a breach of EC law for which it is responsible.” Id. Of course, such obligations apply to all Member States, including the UK, at least for now. 306
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provides and awards similarly robust remedies against the administrative state can be deemed to have “sufficient remedial powers”309 to fit within the requirements of, and implement, the democratic right of contestation and related norms as necessary to protect individual liberty. (b) Germany has a relatively complete remedial system. Germany has highly specialized and regularized procedures for particular types of actions that are specifically tied to the remedies available. These are divided into three major categories, particularly (a) Gestaltungsklage, which allows a court to modify a legal relationship or rights, (b) Leistungsklage, which is “an action for affirmative relief” and (c) Feststellungsklage, which is “an action for declaration.”310 Germany also extracts two additional categories from the aforementioned categories: These two categories are actions to rescind (Anfechtungsklage) and the actions for mandamus (Verpflichtungsklage). Whatever is left in the first two major categories of actions after taking out these particular kind[s] of actions are called the general actions for the [declaration] of legal rights (allgemeine Gestaltungsklage) and the general actions for affirmative relief (allgemeine Leistungsklage).311 Thus, there are five total categories of standard administrative litigation in Germany. Rule of Law Report, supra note 77, at 15. Singh, supra note 87, at 210-11. 311 Id. at 211 (changing the translated word “modification” to “declaration”, as per German legal scholars on the author’s PhD. Review committee). 309 310
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As in Korea, rescission (Anfechtungsklage) is the most common remedy utilized in Germany. Germany’s second most common remedy is a mandamus-like remedy (Verpflichtungsklage), which, when applied by an administrative court, compels an administrative authority to take an action. The other forms of court lead to the provision of declaratory relief. Although declaratory relief can be a useful and serves as an important tool particularly in Korea and Germany, it is not an essential element of the Remedial Criteria within the contours of Pettit’s republican conception of democracy.312 The other two forms of remedies available in Germany round out the elements necessary to satisfy the Remedial Criteria. Section 123 of the Code of Administrative Court Procedure313 specifically empowers a German administrative court to issue a temporary injunction even before an action has been lodged, where a change in the existing situation could reasonably be expected to frustrate or seriously impair the applicant in the realisation of a right.314 Although limited in scope of time it is effective, and thus narrower than prohibitive injunctive relief available in the USA or England,315 Germany’s interlocutory remedy provides the essential function of negative injunctive It is possible that, due to its practical impact, declaratory relief should be added to a broader republican legal theory of required contestation remedies but the basis for doing so is not clearly sufficient to add declaratory relief to the Remedial Criteria used in this study. 313 Verwaltungsgerichtsordnung [VwGO], translation at http://www.gesetze-iminternet.de/englisch_vwgo/. 314 Singh, supra note 87, at 345 (English language translation of the VwGO). 315 Cf. Youngs, supra note 306, at 478 (discussing the four forms of injunctive relief in England, specifically prohibitory, mandatory (similar to mandamus), quia timet and interlocutory). 312
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relief by forbidding actions that would cause material irreparable harm until other appropriate remedies may be implemented. For example, if VwGO Section 123 relief were combined with a later order of rescission, the combination of remedies could arguably be deemed sufficient to both prevent administrative actors from engaging in actions that would cause immediate and long-term violations of the legal rights of private parties. Section 839 of the German Civil Code (Bürgerliches Gesetzbuch [BGB]) provides the final remedy – the tort-related remedy – needed to meet the Remedial Criteria. The relevant type of tort liability “is easier to establish than in England….”316 However, the relevant remedial provisions of the BGB narrowly limit recovery in negligence actions involving breach of an “official duty which falls upon him as against a third party” to matters in which “the person suffering harm cannot obtain compensation in another manner.”317 If the potential breach results from an “official duty through a decision on a legal issue,” then only a criminal act by the relevant administrative actor can lead to state liability.318 Since Germany provides reasonable, although narrow, avenues for private parties to recover compensation under the equivalent of tort actions against administrative actors, Germany appears to meet basic elements of the Remedial Criteria and, thus, provides a decent civil law model against which to compare other jurisdictions. So, regardless of the differences Youngs, supra note 306, at 431. BGB § 839(1) (English language translation in Youngs, supra note 306, at 430). 318 BGB § 839(2) (English language translation in Youngs, supra note 306, at 430). 316 317
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that are found in the constitutional, administrative and court systems of England and Germany, each of them provides its own reasonable suite of remedies sufficient to meet the Remedial Criteria and implement the right of contestation in each of their administrative litigation systems.
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Chapter 3. A.
The Democratic Right of Contestation in American Administrative Litigation. Scope of this Chapter.
The previous two chapters focused on distilling the theoretical and normative framework for establishing, understanding and operationalizing the democratic right of contestation and related norms, such as the rule of law and due process, within a broader constitutional and more specific administrative litigation context. In doing so, this study touched upon some illustrative elements of the English and German systems and, to a lesser extent, the American and Korean systems. This Chapter 3 and Chapter 4 will take a closer look at the actual practices in the United States and Korea, respectively. These two chapters aim to analyze how well governmental organs that are charged with handling democratic contestation claims in the administrative litigation arena in their respective jurisdictions are doing when measured against the Implementing Criteria of the democratic right of contestation. In this chapter, a brief introduction to the American administrative litigation system will be coupled with a basic analysis of how it meshes with the Implementing Criteria. Such analysis will find that the American system is strongest in its Judicial Independence and Adequacy of Remedies – points which are touched upon in Chapter 2. We will see that there are deficiencies in the American approach to Access and Procedural Fairness. Such
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deficiencies will receive their own independent treatment and recommendations for improvement will be provided. B.
Basic Analysis.
Kumm contends that one of the successful preconditions for the successful constitutionalisation of judicial review as Socratic contestation might well be a strong and dominant commitment to a rights-based democracy by political elites and a political culture that has a strong focus on deliberative reason-giving.319 For purposes of this study, we will call this commitment by elites and focus within the broader political culture, “Democratic Culture.” Most advanced industrialized modern democratic states have at least a sufficient level of Democratic Culture necessary to implement most, if not all, of the elements necessary to have a full right of democratic contestation. However, each jurisdiction has deficiencies in Democratic Culture that ultimately translate into different weaknesses in each of their administrative litigation systems and their broader systems of democratic contestation. Such weaknesses are also paired with strengths, giving each system a unique mix of elements that deserve to be criticized and other elements that should be considered sufficient (or even worthy of praise and emulation). As with many other administrative litigation systems, the American system of administrative litigation – or, as it is often referred to in the 319
Kumm, Legitimate Authority, supra note 26, at 30.
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common law, judicial review of administrative actions – is one that typically involved ordinary courts hearing appeals of final administrative decisions. In order to determine how well the democratic right of contestation is implemented in the United States, we need to analyze (a) the overall environment for administrative litigation, including it Democratic Culture and indicia thereof and (b) how well the Implementing Criteria are incorporated into and utilized in the administrative litigation system. This same method of analysis could be used to analyze any particular jurisdiction or serve as bases for comparative analysis of systems. It will also be used in Chapter 4’s discussion of the Korean administrative litigation system. 1.
The American Environment for Administrative Litigation.
Democratic Culture may have many indicia. For purposes of this study, we will use the preconditions for contestability explained in subchapter 2.A.2 as proxy elements therefore. The preconditions for contestability are that the people (1) must have a right to be heard, (2) regardless of which groups they belong to, must have equal access to multiple channels to engage with the state, and (3) must have access to a depoliticized forum wherein contestations against any legislative, administrative or judicial decisions can be heard.320 Although there is not a jurisdiction on earth that has established a perfect
320 Pettit, Republicanism, supra note 20, at 186-96 (discussing the preconditions of democratic contestability).
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environment for democratic contestation, the constitutional, political and legal order in the United States is such that all three preconditions can be said to be substantially satisfied. That is not to say that there is not room for improvement. For there certainly is. The biggest problems with the American administrative litigation system are not found in the general environment but are actually particularized problems identified in each of the parts of subchapter 3.B.2 below. 2.
Implementing Criteria in the USA. i.
Access to Review in the Contestation Forum.
At first blush, it appears that the United States has strong access rights, as ordinary citizens have access to administrative litigation venues, as such venues are the ordinary federal courts.321 However, there are severe impediments that exist that make it so what appears to be accessible is actually quite inaccessible, from the standpoint of being meaningful access, for most Americans. The reason for this is that the system has largely been built in a manner that does not properly factor the impact of its arcane, extremely cumbersome processes, the somewhat related very high costs of litigation322 and the fact
This entire analysis focuses on the administrative litigation system housed within United States federal courts, as it would be too cumbersome to address the 50 states and/or the federal system in this study. 322 See U.S. Chamber Institute for Legal Reform, International Comparisons of Litigation Costs: Canada, Europe, Japan and the United States (Jun. 2013), available at https://www.instituteforlegalreform.com/uploads/sites/1/ILR_NERA_Study_International_Li 321
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that the underlying administrative system and the rules of the courts that stand above them have largely been captured by special interests. While such special interests may include organizations that provide a voice to ordinary people, the fact the system is built to meet their needs and not the needs of the ordinary individual indicate how out of sync the system is with the overall objectives of the democratic right of contestation. For how can an ordinary person protect his or her liberty interests and fundamental rights if such person is de facto shut out of the courts? This is a serious question for anyone interested in liberty, particular republican theorists, like Pettit and Braithwaite, who believe that it is critical for all groups in society to have a chance to challenge the power of the state.323 In order for the United States to provide a more meaningful path forward, it needs to seriously consider reforming its entire court system to meet the needs of its people. This can be done by, for example, adopting many of the programs and recommendations listed in part i of subchapter 2.C.1 above. In particular, there should be concerted efforts made to make court procedures easier for ordinary people to navigate, particularly for more simple types of cases. Furthermore, serious consideration to the expanded use of ADR or alternative court models. ability_Costs-update.pdf (finding that the USA has the highest liability cost and associated cost of litigation as a percentage of GDP). 323 Braithwaite, supra note 123, at 90.
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One model that could be used in the United States and many other jurisdictions is the triple layered set of ordinary courts in the City of Las Vegas in the American State of Nevada for ordinary private party claims and certain criminal matters. Its focus is on speed and proportionality of cost to the type of matter at hand. They have a small claims court that allows individuals to take as little as 10 minutes before a judge, where they present evidence and get immediate rulings. Above that, there is Justice Court, which handles slightly more complex matters and allows for minimal amount of pretrial and in-trial evidence discovery and presentation.324 Cases go before a judge a very short time after filing and are typically decided immediately at the hearing or very soon thereafter. Only the largest or more complex cases have to go to through the more complicated and expensive ordinary court process. There is no reason such simplified processes could not be extended to simple administrative litigation matters. Frankly, other types of organizational and procedural reforms should be considered, including the use of new technologies. The simpler to understand and the more accessible the venue of contestation becomes, the more likely it is that it will meet the demands of fair play that help promote a desire to access the system at all.
324
See generally Las Vegas Justice Court, http://lasvegasjusticecourt.us/ (last visited Sept. 11, 2018).
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ii.
Judicial Independence.
If one is fortunate enough to get access to the American federal court system in order to challenge an administrative action, the one thing that ordinary citizens should feel comfortable about is the independence of the federal courts. Indeed, until the recent hearings concerning the nomination of now Justice Brett Kavanaugh to the United States Supreme Court,325 it was uncommon to find significant criticism of the American courts, particularly the Supreme Court, for lacking independence and being unduly influenced by outside politics. If anything, they were typically criticized for being too independent and encroaching onto the political arena to the point of being accused of turning the United States into a “juristocracy” – rule by judges.326 Now, we will have to see if the highly partisan fight of Justice Kavanaugh’s confirmation will spill over into more politically charged court activity – particularly activity that appears to be influenced by outside politics. American courts are strongly independent so that their independence is largely taken for granted and, for better or worse, viewed as models of independence. Such independence was identified as a pressing need early in the American Republic and is a foundational concept of the American
Given the nomination “circus”, commentary on the politicization of the U.S. Supreme Court has reached the popular press. See, e.g., Fareed Zakaria, Zakaria: The Real Victim of the Kavanaugh Mess, CASPER STAR TRIB.(Oct. 7, 2018), https://trib.com/opinion/columns/zakaria-the-realvictim-of-the-kavanaugh-mess/article_5ab21b51-5afe-5f64-a0e4-195f47d16c47.html (last visited Oct. 9, 2018). 326 Hirschl, supra note 284, at 71. 325
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constitution.327 The below analysis of how American federal courts line up on the list of judicial independence factors identified by Ferejohn et al. described in subchapter 2.C.2 328 demonstrates how fidelity to that founding American principle carries on to this day: a. Strength of Judicial Review Authority: American district (trial) and appellate courts have the full authority to both (a) enforce and (b) review and overrule legislative statutes. They can do so on constitutional grounds. With respect to administrative actions – whether investigations, regulations, rulings or opinions, they can also make queries into and, if necessary, order remedies that allow the courts to direct and control the administrative state on rule of law and ultra vires grounds. Their powers at law and equity give them substantial strength in the judicial review arena. b. Term of Judicial Appointment: The United States Constitution provides that judges are appointed for life and may only be removed for cause.329 Like “all Civil Officers of the United States”, federal judges appointed under Article III of the United States Constitution may only be removed by the constitutionally provided process of congressional impeachment and conviction.330 Impeachment is not a matter for civil or criminal courts in that it strictly involves the “misconduct of public men, or in
See generally THE FEDERALIST 78 (Hamilton). Ferejohn et al., supra note 259, at 1-6. 329 U.S. CONST., art. III, § 1. 330 U.S. CONST., art. II, § 4. 327 328
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other words from the abuse or violation of some public trust.”331 This process requires an investigation and majority vote in the House of Representatives to send charges to the Senate. The full Senate holds a trial and must convict by a two-thirds vote. This process has been rarely invoked and out of the tens of thousands of judges who have served on the federal bench, only eight have been removed by impeachment.332 So, federal judges have virtually no need to fear for their jobs or worry about how their rulings might impact future employment possibilities. c. Salary Protection: The United States Constitution also protects the salary of judges and provides two protections. First, their compensation may not be withheld. Second, such compensation “shall not be diminished during their Continuance in Office.”333 Given that federal judges currently make well over $200,000 per year and have no obligation ever to retire, they have no reasons to worry about income. This financial security bolsters the independence of American judges by making it virtually impossible for financial factors to influence their decisions.334 d. The Difficulty of Changing Court Composition: Like the Korean Supreme Court and the ordinary courts beneath it (but unlike the Korean THE FEDERALIST 65 (Hamilton). Office of the Historian, United States House of Representatives, Impeachment, http://history.house.gov/Institution/Origins-Development/Impeachment/ (last visited June 2, 2018). 333 U.S. CONST., art. III, § 1. 334 Of course, there have been some instances of judges taking bribes or otherwise acting in their own financial interest, but such cases are very uncommon. 331 332
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Constitutional Court335), the size and structure of American courts are not constitutionally set but instead determined by Congress. Like the Korean Constitution, the United States Constitution simply states that there is to be a supreme court and such inferior courts as Congress creates.336 It does not specify the number of judges on the U.S. Supreme Court or any other courts. So, it is theoretically possible for legislators in the United States to change the size and structure of the Supreme Court, appellate courts and district courts. However, the last president to propose changing U.S. Supreme Court composition to “pack” it with his own nominees, Franklin Roosevelt, had his 1932 proposal rejected by a Congress dominated by his own political party.337 History and tradition have left the United States Supreme Court at nine justices for most of its history and it is hard to imagine a scenario wherein Congress would have the political will and power to change the size or structure of the courts. Given these political limitations, the only way court 335 대한민국헌법 [Constitution], art. 111 (S. Kor.) (“The Constitutional Court shall be composed of nine Justices….”). 336 U.S. CONST., art. III, § 1; see also 대한민국헌법 [Constitution], art. 102 (S. Kor.) (“The organization of the [Korean] Supreme Court and lower courts shall be determined by Act.”). 337 This is a brief explanation of President Roosevelt’s court-packing scheme:
After winning the 1936 presidential election in a landslide, Franklin D. Roosevelt proposed a bill to expand the membership of the Supreme Court. The law would have added one justice to the Court for each justice over the age of 70, with a maximum of six additional justices. Roosevelt’s motive was clear – to shape the ideological balance of the Court so that it would cease striking down his New Deal legislation. As a result, the plan was widely and vehemently criticized. The law was never enacted by Congress, and Roosevelt lost a great deal of political support for having proposed it. Federal Justice Center, FDR’s “Court-Packing” Plan, https://www.fjc.gov/history/timeline/fdrs-court-packing-plan (last visited June 2, 2018).
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composition can change is through the constitutionally established practice of presidential appointment and Senate confirmation. Even after exercising the “nuclear option” to make it easier for the Senate to confirm lower court nominees with a simple majority instead of a super majority of 3/5,338 the Senate confirmation process is so slow that it is hard to imagine a courtpacking scenario playing out in the United States. e. Level of Political Fragmentation: The United States federal government is relatively highly politically fragmented. Even though it is predominantly a two-party political system, even when there is party unity in both houses of Congress and the White House, they still have trouble acting in a united front. That is because the parties themselves represent large coalitions of disparate interests. It is also important to note that long-term party unity is very uncommon. Even though eight of the eleven post-World War II presidents enjoyed party unity for at least two years of their presidency, Paul Kane, Reid, Democrats Trigger ‘Nuclear’ Option; Eliminate Most Filibusters on Nominees, WASH. POST (Nov. 21, 2013), https://www.washingtonpost.com/politics/senate-poised-to-limitfilibusters-in-party-line-vote-that-would-alter-centuries-of-precedent/2013/11/21/d065cfe852b6-11e3-9fe0-fd2ca728e67c_story.html?noredirect=on&utm_term=.115c4d8fee28 (last visited June 2, 2018). In November 2013, Senate Democrats used the “nuclear option” to change longstanding Senate rules to require only a majority vote to end a filibuster of judicial nominees, not including Supreme Court nominees, instead of the 3/5 of votes previously required, in order to make it easier for President Obama’s nominees to get through the Senate. In April 2017, Senate Republicans completed the “nuclear option” and changed the rules allowing only a majority to confirm a U.S. Supreme Court justice. Matt Flegenheimer, Senate Republicans Deploy ‘Nuclear Option’ to Clear Path for Gorsuch, N.Y. TIMES (Apr. 6, 2017), https://www.nytimes.com/2017/04/06/us/politics/neil-gorsuch-supreme-court-senate.html (last visited June 2, 2018). The reduction of the required number of senators from a supermajority to a simple majority to confirm nominees makes it less likely that judges will be politically “nonpartisan or at least an ideologically pluralistic bench.” Ferejohn et al., supra note 259, at 2. That will likely have some bearing on how politically charged issues that go before the Court are dealt with in political discourse if not within the Court itself. This will likely undermine the perceived legitimacy of its more politically sensitive decisions in the future. 338
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only four of those enjoyed more than two years. There has not been more than one consecutive presidential term with continuity of political unity since the 1960s, when Presidents Kennedy and Johnson enjoyed single-party rule for their entire presidencies.339 The point is this: The elevated level of political fragmentation at the federal level alone makes it so there is no party hegemony that can intimidate or undermine the judiciary. If one considers the compounding factor of political fragmentation at the state and local level, there is clearly no one party or coalition that has been able to dominate American politics enough to interfere with the judiciary. f. Jurisdiction: While some aspects of federal court subject matter jurisdiction is firmly set, particularly with respect to criminal and most civil cases, this is not as much the case with respect to judicial review over matters of administrative litigation that do not implicate constitutional issues. There is no question that Congress has the authority to limit some aspects of court jurisdiction to conduct judicial review of administrative matters. However, attempts to do so cannot preclude federal district court jurisdiction over due process claims or “generic constitutional and statutory claims.”340 So, while Congress may restrict judicial review of basic legal issues, it cannot prohibit
339 See Russell D. Renka, Party Control of the Presidency and Congress, 1933-2010, http://cstlcla.semo.edu/rdrenka/ui320-75/presandcongress.asp (last visited June 2, 2018). 340 McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 497 (1991).
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federal courts from “general collateral challenges to unconstitutional practices and policies used by [an] agency….”341 Jurisdiction limitation is a tool that the United States Congress has used to limit courts’ abilities to challenge their political judgments and protect allied administrative agencies in their various activities. Limiting jurisdiction is an area wherein American courts are susceptible to weakening via political activity – this is particularly true in limiting their ability to hear appeals concerning administrative actions. So, while American courts do enjoy a great deal of independence under the other factors discussed herein, Congress can and does attempt to use jurisdictional restrictions to limit the potential for courts to protect claimants’ legal rights via contestation against the administrative state. Even more troubling, the courts themselves have developed doctrines, loosely tied together under the banner of “Chevron deference,” which doctrines limit the ability of courts to properly probe administrative interpretations and implementations of statutory law. Such deficiency is touched upon immediately below and discussed in detail in subchapter 3.C. iii.
Procedural Fairness.
The fundamental premise behind due process is that all sides have to be treated fairly. Due process comes in many forms. Generally speaking,
341
Id.
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procedural due process is paid homage to and strongly protected in the United States. This is normally the case in administrative law and judicial review of administrative actions. However, some procedural peculiarities undermine the general notion of procedural fairness in American administrative litigation. They include, inter alia, failures to allow truly deep and probing analysis of the rationale behind administrative decision-making, nonsensical distinctions between claims that could have been made at common law and those that could not, and certain instances wherein the government actors are unfairly given deference in judicial proceedings. Each one of these deficiencies is rich in history, as well as a basis for theoretical and practical debate. Due to the complexity of, and need to address thoroughly, the incompatibility of Chevron deference with the principles underpinning the democratic right of contestation, it will be the subject of heightened focus for the United States in this study. Thus, such doctrine will be the primary subject of discussion and recommendations in subchapter 3.C below. Ultimately, it will conclude that elimination of, or at least serious reforms of the Chevron doctrine should be adopted immediately in order to provide a more equal and democratically sound framework in which reasonable contestation procedures can be used in American administrative litigation.
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iv.
Adequacy of Remedies.
In subchapter 2.C.2 of this study, German and English administrative litigation remedies are discussed in order to establish reasonable civil law and common law baselines for the type and nature of remedies that should be made available to administrative litigation courts in order to satisfy the requirements of the democratic right of contestation. American federal administrative litigation remedies are codified and provide a clear basis for courts to force the state to alter its actions, act, stop acting or even pay compensation to aggrieved claimants. This full complement of remedies borrowers from the broader common law tradition. As such, they are strongly embedded in American legal tradition and culture. Given their strong historical foundation, which underpins legitimacy to their substantive impact, they should be deemed to be adequate to improve administrative outcomes for all by constraining the state from acting arbitrarily or otherwise oppressing the people through administrative acts. As with England, the United States federal government provides administration litigation remedies that meet the Remedial Criteria. Section 706 of its Administrative Procedures Act (“USAPA”) provides federal courts the right to review administrative action and ultimately “(1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be” illegal
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under Section 706.342 A reviewing federal court may both prohibit public officials from taking future action, as well as rescind administrative action. The United States has continued the traditions started in England with respect to the use of equitable remedies. Such remedies include both prohibitory injunctions and mandatory (or positive) injunctions. In the former, an order issues from the court requiring the defendant to cease doing something harmful. In the latter, a defendant is required by court order “to take affirmative steps to correct its behavior or prevent further harm.”343 As in England, private parties in the United States did not always have the right to seek a full suite of remedies from reviewing courts in administrative litigation matters. In 1976, Congress passed legislation waiving sovereign immunity and provided federal courts with authority to award mandatory and prohibitory injunctions against the federal government, as we still see in Section 702 of the USAPA.344 Thus, American federal courts have the authority under Section 702 to both (1) compel future action by public officials and (2) bar future action by public officials. Thus, the USAPA provides all of the non-tort related administrative litigation remedies necessary to meet the Remedial Criteria. Relevant sections of the USAPA clearly meet Pettit’s requirement that remedies provided at the end of formal
5 U.S.C. § 706 (2018). Johns & Perschbacher, supra note 216, at 114. 344 Steven J. Cann, ADMINISTRATIVE LAW 353 (2d ed. Sage Publications 1998). 342 343
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democratic contestation proceedings be such that they force public bodies to alter their decisions. The Federal Tort Claims Act (the “FTCA”) completes the American remedial suite by providing damages to private parties suing the government in tort. Under the FTCA, the federal government may be liable for injury, death, or loss of property “caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”345 Due to the federal nature of the American government, there are some unique permutations with respect to remedies. Importantly, state tort law, not federal law, typically governs the extent of substantive liability, including remedies available against the federal government. However, the FTCA expressly excludes government liability with respect to certain administrative actions346 and for eleven common law torts, specifically “claims arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, and interference with contractual rights.”347
28 U.S.C. §1346(b)(1) (2018). See, e.g. Dalehite v. U.S., 346 U.S. 15 (1953) (a federal district court cannot assert jurisdiction over a tort claim “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government.”). 347 28 U.S.C. §2680(h) (2018). 345 346
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Regardless of those exclusions, the federal government may generally be held liable in tort. Thus, federal law provides for all four requisite types of administrative litigation remedies and American courts regularly employ in order to uphold the rights private parties have against the administrative state. C.
Procedural Limits on Judicial Review.
In the United States, various procedural impediments stand in the way of getting into court but, once in court, procedural limits on judicial review are generally not that severely contrary to republican aims. There is one notable appellate issue – the United States Supreme Court’s procedures that effectively cut off access to such court for almost all litigants. The Court uses a writ of certiorari as the most common way to petition the court for review, typically from an intermediate federal appeals court or a state supreme court.348 Such writ is effectively a request that the Supreme Court order a lower court to deliver its record to the Court for review. The Court only “accepts 100-150 of the more than 7,000 cases that it is asked to review each year.”349 The cases it accepts are usually only those of national significance, that can provide national harmonization where there are conflicting federal circuit court interpretations of the law, or that could have significant value as
348 United States Courts, Supreme Court Procedures, http://www.uscourts.gov/about-federalcourts/educational-resources/about-educational-outreach/activity-resources/supreme-1 (last visited Oct. 9, 2018). 349 Id.
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precedent in an area of law the Court feels it should impact.350 Effectively, for most litigants in federal court, they get only one appeal, the appeal to the relevant federal circuit. This is a limitation on their right to engage in full and robust appeals. Given the vast scope of cases that come before the Court, it is likely that only a handful of administrative litigation cases might get any form of high court review in a given year. This limitation deserves serious consideration and creative solutions, such as having the Court sit in smaller groupings for certain cases as done in other courts – it could have three-judge panels weigh in on more mundane but important issues and then have the full court sit to hear matters of great national or constitutional significance. If there is a level playing field, litigants challenging the government win most of the time at the trial court level. However, in the United States, there is one particular doctrine of procedural limitation at trial that upends the democratic right of contestation by impeding rights specifically within the administrative litigation setting in a fundamental way. Its impact is so pervasive, and it stands in such defiance of fundamental notions of republican justice, that it is the most glaring procedural defect of the American judicial review court procedures. That defect is the Chevron doctrine, which is a court-created doctrine that has morphed over time but has maintained and even strengthened its fundamental flaws. Its origins, flaws and failure to
350
Id.
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comply with basic notions of the republican theory of democratic contestation are outlined below. 1.
America’s Un-republican Chevron Doctrine.
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.351 (“Chevron”) is a landmark United States Supreme Court case that established the rule that “courts must defer to reasonable agency interpretations of ambiguous administrative statutes.”352 This now foundational doctrine has contributed to over thirty years of judicial abdication of power and responsibility in favor of the bureaucratic state. What is odd about this abdication is that it results from a judicially-created doctrine that inherently lessens judicial authority by requiring judicial deference to administrative agencies that, as it now stands, allows agencies to avoid strong judicial review. Indeed, it serves as a basis for courts to find an excuse to avoid doing their constitutionally and statutorily mandated jobs of determining what the law is.353 The Chevron test is applied to determine the validity of the administrative interpretation of statues that are “silent or ambiguous with respect to [a] specific issue” that is the subject of such interpretation.354 If Congress has 467 U.S. 837 (1984). Note, Justifying the Chevron Doctrine: Insights from the Rule of Lenity, 123 HARV. L. REV. 2043 (2010) [hereinafter “Justifying Chevron”]. 353 Marbury v. Madison, 5 U.S. (I Cranch) 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to [s]ay what the law is.”). 354 Chevron, 467 U.S. 837, 843. 351 352
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not directly spoken on the issue and “the agency's answer is based on a permissible construction of the statute”355, then courts are supposed to let such agency interpretation stand,356 even if it is a poor interpretation. In its first twenty-two years, the Chevron case was the most cited case of any in modern American law.357 If anything, its frequency of citation has gone up since that time. It is also the most written about administrative law case in American legal academic journals.358 It is likely that if Justice Stevens, the author of Chevron, had known how much notoriety would be thrust upon his opinion due to its significance, he would have likely provided a stronger justification for its doctrine rather than the four weak “possible reasons” that have been cited for supporting it.359 Since it was a unanimous decision on what the Court perceived at the time to be a fairly uncontroversial technical procedural housekeeping matter, Justice Stevens did a lousy job of writing a defense for his new rule.360 Even some Chevron doctrine supporters, like the author of a 2006 unsigned note in
Id. at 843. Id. 357 Justifying Chevron, supra note 352, at 2045 (citing Thomas J. Miles & Cass R. Sunstein, Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron, 73 U. CHI. L. REV. 823, 823 (2006)). 358 Bradley Lipton, Note, Accountability, Deference, and the Skidmore Doctrine, 119 YALE L.J. 2096, 2098 (2010) (“Chevron is by far the most cited Supreme Court case of the last twenty-five years and has been the subject of hundreds of law review articles.”). 359 Justifying Chevron, supra note 352, at 2045. 360 Dissents often force stronger majority opinions, as dissenters force sharpening of arguments with better legal reasoning, logic, evidence and other support. 355 356
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the Harvard Law Review, rather summarily discard the weak analysis of Justice Stevens and come up with alternative supporting theories.361 In the Chevron decision itself, Justice Stevens tried to justify judicial deference to agency interpretations of silent or ambiguous statues. He and the unanimous Court commanded that American federal courts must defer to administrative interpretations under their then new doctrine because (1) Congress intends the courts to do so, (2) agencies exercise delegated legislative power when they issue interpretations, (3) agencies are more politically accountable than courts, and (4) agencies have the necessary technical expertise that courts often lack.362 Given that supporters of the Chevron doctrine themselves attack these arguments, it is not expedient or necessary to address them all here. Each one is rather easily deconstructed and disposed with.363 Nevertheless, arguments continue to be made by some who seek to rehabilitate Chevron. For example, Bradley Lipton draws upon data drawn primarily from political studies of agency accountability to demonstrate that, despite general academic sentiment to the contrary, agencies are quite accountable to Congress and the people “via a decentralized system of responding to complaints from constituent groups and the media.”364 Such
Justifying Chevron, supra note 352, at 2044-49. Id. at 2044. 363 Id. at 2044-49 (deconstructing the Chevron Court’s four original defenses of the Chevron doctrine while proposing an alternative basis for supporting it). 364 Id. at 2105. 361 362
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political accountability is a stronger argument in favor of keeping it than the others noted herein. Another argument in favor of Chevron is simply one of economy – both judicial economy and administrative economy. The more likely it is that courts will uphold administrative interpretations of rules, the more likely it is that potential litigants against the government will be discouraged to file claims for review. Of course, this chilling effect is the very reason Chevron is abhorrent to the democratic right of contestation. Nevertheless, such likelihood of pre-cooked results will make it so courts save resources and also administrative agencies will save resources that might go to both defending their interpretations or re-doing interpretations that are overturned in nonChevron court environments. The Chevron doctrine was judicially crafted in a case wherein the United States Supreme Court attempted to lessen confusion about how much deference to provide administrative agencies. Although it has, to a certain extent, lessened confusion, it has done so at the cost of undermining the appropriate role of the judiciary itself, particularly when the Chevron doctrine is viewed in a republican light and held up against the Implementing Criteria. As propounded originally and even as it has been altered and bolstered to this day, the Chevron doctrine clearly undermines Procedural Fairness and lessens the ability of courts to assert Judicial Independence. Although Chevron has
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been applied in tens of thousands of cases and has been the most written about subject in American administrative law since its inception in 1984, only recently has its violation of foundational republican ideals, and resulting danger to individual liberty, been crystalized. This was done most notably in a dissenting opinion written by now Justice Neil Gorsuch of the United States Supreme Court, while he was a judge on the Tenth Circuit Court of Appeals in 2016.365 Before we further discuss any criticism or defense of Chevron, brief overviews of the below-discussed defining cases that have shaped the Chevron doctrine to-date are in order: i.
Key Pre-Chevron Laws.
Long before the Chevron doctrine came onto the scene, the two most important sources of law in the United States concerning how to treat judicial review of administrative agency interpretations of law were the USAPA and the Skidmore366 decision. The USAPA, which was first enacted in 1946,367 vests American federal courts with judicial review authority over agency actions about which statutes grant authority or “for which there is no other adequate remedy in a court.”368 In addition to broad powers to decide questions of law and constitutional See Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (2016) (Gorsuch, J., concurring). Skidmore v. Swift & Co., 323 U.S. 134 (1944). 367 P.L. 79-404, 60 Stat. 237 (1946). The USAPA is codified at 5 U.S.C. § 551, et seq. 368 5 U.S.C. § 704 (2018). 365
366
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matters, federal district courts engaged in judicial review of administrative actions have the power to “interpret … statutory provisions” and take actions necessary to overturn agency actions in violation of such interpretations.369 While the USAPA provides statutory bases for federal court authority to conduct judicial review of legislative actions, there is a strong basis for asserting such authority on constitutional grounds alone.370 Prior to the Chevron doctrine coming into play, there were a variety of approaches taken with respect to deference to administrative agency interpretations with respect to administrative actions. One of the key cases, which has become a relatively recently revived and controversial piece of case law is the 1944 Skidmore decision, which established the basic concept of judicial deference and is still the basis of review of informal agency action. Like the USAPA itself, Skidmore was a product of the New Deal era and the need for all branches of government to come to terms with a newly expanded and invigorated administrative state. Today, Skidmore is viewed as the basis for a moderate form of federal court deference to administrative agencies with respect to agency interpretation of law. Two major features that distinguish Skidmore deference from Chevron deference, are that (a) courts will provide deference to less formal proceedings in the former than the latter and (b) 5 U.S.C. § 706 (2018). Gutierrez,-Brizuela at 1151 (10th Cir. 2016) (Gorsuch, J., concurring) (noting that “the question whether Congress has or hasn't vested a private legal right in an individual ‘is, in its nature, judicial, and must be tried by the judicial authority.’” (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 167, 2 L.Ed. 60 (1803)).
369 370
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courts give Skidmore deference to agencies’ informal decisions “to the degree their arguments have the ‘power to persuade.’”371 The (b) element is the clearest departure from Chevron, as Chevron has a virtual judicial rubberstamping aspect to it. As will be explained below, there are instances today wherein Skidmore deference is still applied. Notably, given the strong republican foundations of the Korean constitutional order, each hierarchical lineup should place the values embedded in the democratic right of contestation on top. ii.
Chevron Two Step Injustice.
The basic Chevron test determines whether a federal court must show deference to a particular administrative agency’s interpretation of a legislatively created statute that it entirely or jointly administers. In other words, it tests the limits of agency discretion – at what juncture do courts take over from agencies in making determinations of statutory interpretation. The Chevron test consists of two steps, which are comprised of two questions to be asked by the court engaging in judicial review. In Step One, the court asks whether “the law authorizing administrative action provides a clear answer to the meaning of [the] statutory term [at issue], as used by Congress.”372 If there is clear congressional intent, then the court will
Lipton, supra note 358, at 2099 (quoting Skidmore, 323 U.S. at 140). Ronald A. Cass, Vive la Deference?: Rethinking the Balance Between Administrative and Judicial Discretion, 83 GEO. WASH. L. REV. 1294, 1314 (2015). 371 372
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interpret the statute using the clearly intended meaning of Congress without deferring to the agency. There is then no need to go to Step Two. If the statute is ambiguous or leaves a gap of silence, then – and this is the remarkable leap of very questionable logic – the court is to deem that Congress intended to delegate authority to interpret the statute to the agency and we proceed to Step Two.373 In Step Two, the court simply decides whether the agency’s interpretation of the statutory language at issue is reasonable enough to be permissible. The question is not whether it is the interpretation Congress most likely intended. Nor is it a question of whether it is the interpretation that makes a reasonable policy choice based upon the record. All it does is to allow a statutory term to “cover[] several meanings and the agency is free to choose among them on any reasonable basis (a statement of deference within a legally circumscribed zone of discretion).”374 The Chevron permissibility standard is so low that it completely shifts the likely outcome of the litigation. In a broad survey of over 1,500 published federal court reviews of agency interpretations of statutes, Kent Barnett and Christopher J. Walker “coded every published circuit court decision from 2003 through 2013 that refers to Chevron deference--for a total of more than
Id. (noting that “Chevron … treats silence or ambiguity as equivalent to a conscious congressional grant of discretionary authority to the administrator.”). 374 Id. at 1315. 373
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1,300 decisions (and more than 1,500 total agency statutory interpretations under review).”375 They found that, in the cases reviewed where Chevron was referenced in a published opinion, agency interpretations were significantly more likely to prevail under Chevron (77.4%) than Skidmore (56.0%) or, especially, de novo review (38.5%). Despite methodological limitations, even these raw-number findings make it hard to argue that Chevron deference does not matter in the circuit courts.376 What is striking about these figures is that if there is actually a level playing field in the judicial review process, meaning both sides to the litigation are treated equally as in an ordinary de novo review, agencies lose most of the time. While a mild level of deference under Skidmore tips the scales in favor of agencies, Chevron’s “permissible” interpretation is such a low standard that “getting to Step Two of the Chevron analysis traditionally has meant that the party opposing the agency is about to lose.”377 It is hard to see how the Chevron doctrine can be seen as anything other than undermining basic notions of fairness and equal treatment in American administrative litigation. iii.
Adding a Step Zero: United States v. Mead Corp.
One of the problems with the Chevron test, as initially created, is that it left open some fairly significant questions such as (a) which agencies have Christopher J. Walker, Challenging Administrative Power: Attacking Auer and Chevron Deference: A Literature Review, 16 GEO. J.L. & PUB. POL'Y 103, 121 (2018). 376 Id. 377 Katherine Brady, Who Decides? Overview of Chevron, Brand X and Mead Principles (2011), available at https://www.ilrc.org/sites/default/files/resources/overview_of_chevron_mead__brand_x.pdf. 375
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authority to interpret which statutes and (b) which type of interpretation is considered to be an authoritative agency interpretation worthy of deference? One could imagine a scenario wherein an agency attempts to interpret a statute – even a statute that it clearly administers – that is ambiguous about whether a certain rule it propounds is subject to judicial review and, not surprisingly, determining that it is exempt from judicial review.378 It is hard to believe that Congress would intend such a self-interested use of administrative discretion.379 Logic dictates that there must be some limitations with respect to which portions of which statutes are subject to Chevron deference. Even if a statutory provision is such that an agency can be rightfully said to have the authority to interpret it, there is still the issue of who has the right to speak for the agency and in what format in order to create an interpretation subject to deference. In other words, “what constitutes an ‘agency’ interpretation[?] Does a lower-level official count as the ‘agency’? The General Counsel’s office?”380 These questions demonstrate the need for courts to conduct some type of analysis prior to Step One in order to determine if the agency interpretation at issue is legally authoritative. This threshold question has been termed “Step Zero,” since zero comes before one.
Cass R. Sunstein, Chevron Step Zero, 92 VA. L. REV. 187, 209 (2006). Id. 380 Id. at 2010. 378 379
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United States v. Mead Corp.381 (“Mead”) has been made famous for attempting to insert Step Zero into the Chevron doctrine. Step Zero must be passed before even getting to the two-step Chevron analysis. It is possible for an agency to fail to get past Step Zero, and thus lose out on Chevron deference, in instances such as these:382
“The agency did not make a formal rule (e.g. an unpublished [Board of Immigration Appeals (“BIA”)] case; a published case with a holding that is too vague or is a mere “guideline”).”383
“The agency does not administer the provision (e.g., the BIA doesn’t administer federal or state criminal statutes, and does not administer certain provisions in the [Immigration and Naturalization Act], with the obvious examples of judicial review provisions or the immigration-related federal crimes listed there, or citizenship statutes).”384
If an agency fails at Step Zero, courts may still need to apply a deferential standard, but it will not take place under Chevron. The doctrine that comes out of Mead indicates that if the Step Zero failure results from a lack of formality in the agency’s process, then a lower level of deference under Skidmore could still be used to judge the reasonableness of the agency’s interpretation.385 There are some courts and scholars who also believe that Skidmore deference could be triggered by indicia that Congress “explicitly
533 U.S. 218 (2001). See Brady, supra note 377, at 2-3 (setting forth these basic examples various more specific examples with particular pertinence to practice involving the Board of Immigration Appeals). 383 Id. 384 Id. 385 Lipton, supra note 358, at 2124. 381 382
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delegate[ed] lawmaking authority to informal action.”386 While that sounds good, it is very rare that such intent of Congress can be ascertained.387 The most significant aspect of the Mead Step Zero test for our purposes is that it clarifies when Chevron should be applied. If Step Zero is applied correctly, it should reduce the number of cases subject to Chevron’s high level of deference. Any court doctrine that chips away at Chevron’s impermissible empowerment of the administrative state to engage in relatively arbitrary behavior is welcome. Ultimately, Mead makes it a little more likely that those who are engaged in administrative litigation against an administrative agency’s interpretation of a statute will be able to question an agency’s decision-making process and, as a result, have a fairer hearing than they would under Chevron pre-Mead. iv.
Brand X Subjugates Court Precedent to Agency Opinions.
In Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Services 388 (“Brand X”), the United States Supreme Court held that if Chevron deference is required to be given to an agency and (a) a federal court had written a published opinion on the issue over which deference must be provided and (b) such court opinion pre-dates the agency’s subsequent published interpretation, Id. Russell L. Weaver, The Emperor Has No Clothes: Christensen, Mead and Dual Deference Standards, 54 ADMIN. L. REV. 173, 201 (2002) (criticizing Mead’s “glosses” and, in particular, requiring courts to search for impossible to find congressional intent). 388 545 U.S. 967 (2005). 386 387
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then, to the extent necessary to conform to the agency opinion, the court is required to reverse its own prior precedent. Brand X has the effect of (a) flipping decades of precedent on its head, (b) undermining the USAPA, (c) raising serious due process and equal protection concerns, and (d) flying in the face of established separation of power doctrines.389 It does all of those things by making agencies, not courts, the final arbiters of what the law actually is, undermining the authoritative nature of “judicial declaration[s] of the law’s meaning” by “subject[ing them] to revision by a politically accountable branch of government….”390 Admittedly, the fact patterns that will trigger application of Brand X are few and far between. However, granting an agency the ability to overturn a court interpretation that it does not like by merely interpreting or reinterpreting a law is a troubling concept for anyone interested in separation of powers and the rule of law. For any ordinary citizen who is impacted by the subject matter of such a law, it is hard to see how this is not an area of potential abuse that could limit the fundamental due process rights and ultimately impinge on liberty interests. 2.
Chevron and Brand X: Abhorrent to Contestation Rights.
See, e.g., Gutierrez-Brizuela, 834 F.3d at 1151-52 (Gorsuch, J., concurring) (citing Brand X, 545 U.S. at 982-85). 390 Id. at 1150 (Gorsuch, J., concurring). 389
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In order for parties to administrative litigation to have their full rights of contestation upheld, there must be, inter alia, both Judicial Independence and Procedural Fairness. Chevron deference, particularly when layered with Brand X, severely undermines both of those necessary ingredients. Chevron deference alone strips a core function of the judicial branch – interpreting the law – and gives it to the executive or even independent agencies. This is a clear violation of the thick notion of separation of powers, as it also removes the capacity of the court to fully provide a check against administrative interpretations, even if they are incredibly flimsy. Thus, the judiciary is compromised and political will, as expressed by agencies, is allowed to skirt or even trump judicial review. 391 Such a weakening of the courts undermines the judiciary established in Article III of the American Constitution sufficiently to call into question its independence in Chevron cases. In addition to Article III concerns, Article I and Article II constitutional separation of powers concerns arise from Chevron as well. Indeed, Chevron has been criticized for promoting what should be seen as constitutionally questionable delegations of legislative authority to agencies, thus diminishing the role of Congress. While Article I of the American Constitution grants “All
See, e.g., Egan v. Del. River Port Auth., 851 F.3d 263, 279 (3d Cir. 2017) (Jordan, J., concurring in the judgment) (“The checking function of the courts is in our power of judicial review, it being ‘emphatically the province and duty of the judicial department to say what the law is.’ Yet, the Supreme Court has created a doctrine that requires judges to ignore their own best judgment on how to construe a statute, if the executive branch shows up in court with any ‘reasonable interpretation made by the administrator of an agency.’” (citations omitted)).
391
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legislative Powers” to Congress,392 “Chevron deference encourages members of Congress to delegate broad lawmaking power to federal agencies”393 in a process that both potentially undermines the constitutional nondelegation doctrine and definitely creates an environment of “administrative collusion” wherein members of Congress collude with administrative agencies.394 This unhealthy environment encourages Congress “to pass vague laws and leave it to agencies to fill the gaps, rather than undertaking the difficult work of reaching consensus on divisive issues.”395 Besides compromising structural separation of powers, the Chevron doctrine also undermines the careful procedural balance struck in the USAPA, providing agencies with a procedural advantage in court that allows them an opportunity to prevail without the other side getting a chance to contest the reasonableness of the agency’s interpretation properly. This is a clear violation of fundamental fairness and calls into question whether Chevron should be able to withstand due process concerns inside or outside of a republican theoretical framework.
U.S. CONST., art. I, § 1. Walker, supra note 375, at 112. 394 Neomi Rao, Administrative Collusion: How Delegation Diminishes the Collective Congress, 90 N.Y.U. L. REV. 1463, 1504 (2015); see also id. at 1505-06 (“Delegations thus erode one of the primary mechanisms for controlling the government by undermining the structural rivalry between members of Congress and the executive. Instead of competing over delegation, they will often agree on open-ended delegations of authority to agencies in order to expand the discretionary power of the legislators and administrators.”). 395 Egan v. Del. River Port Auth., 851 F.3d 263, 279 (3d Cir. 2017) (Jordan, J., concurring). 392 393
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If Chevron itself brings about concerns, Brand X should be the flashing warning sign that the United States Supreme Court has fundamentally lost its way in this line of reasoning. Instead of serving as the guardian of the rule of law, due process and the role of the courts in protecting the liberty of the people, in Brand X, the Court simply allows the administrative state to come up with a way to overrule court interpretations of statutes. It is such an abrogation of judicial duty that it is hard to believe it came out of the same court that has been accused of accumulating too much power through its decisions.396 In Federal Express Corp. v. Holowecki397, a Skidmore-based deference case, and Brand X, the United States Supreme Court “explicitly cited political accountability as a reason for deferring to agency authority….”398 While the Court and its Chevron and Brand X deference apologists point to the notion that agencies are more politically accountable than courts and somehow that gives them more legitimacy than courts, such reasoning quickly falls short for many reasons, including lack of agency expertise in interpreting the law when compared with the judiciary. It also falls apart when one recognizes that it is imperative that a neutral, depoliticized399 authority should have full power and authority to hear challenges against agencies and decide what that law is: See, e.g., Hirschl, supra note 284, at 71 (commenting on the juristocracy of the United States Supreme Court). 397 552 U.S. 389, 128 S. Ct. 147 (2008). 398 Lipton, supra note 358, at 2139. 399 Pettit, Republicanism, supra note 20, at 196. 396
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That is a fundamental purpose of any forum engaged in trying to uphold the democratic right of contestation. Furthermore, it is difficult to find any version of separation of powers that would strip the judiciary of its fundamental function of interpreting laws and hand such function to the very agencies involved in implementing, and very likely were involved in writing,400 such laws. At this point, it is crucial to note Article II constitutional concerns, particularly the very common, significant yet behind the scenes, role that agencies play in working with Congress to draft legislation that the same such agencies will interpret and implement. Such a role in drafting legislation calls into question the entire premise of deference based upon implied delegation of authority to agencies from Congress. This is due to concerns about de facto “self-delegation-- the same government actor both making and executing the law….”401 After all, agencies’ role as a partner in legislation undermines the fundamental premise of Chevron deference, as they have too much of an opportunity to empower themselves with massive discretionary power.402 Such a consolidation of power also calls into question separation of
400 Walker, supra note 375, at 115 (pointing out “that federal agencies are deeply involved in legislative drafting--both in the forefront by drafting the substantive legislation the Administration desires to submit to Congress and in the shadows by providing confidential ‘technical drafting assistance’ on legislation that originates from congressional staffers.”). 401 Id. at 113. It is important to note that Walker takes direct aim at Justice Scalia’s assertion that self-delegation is not a Chevron-related problem, and makes the argument that, to the contrary, self-delegation is a serious matter of concern. Id. at 113-15. 402 Id. at 115 (noting that the “role of federal agencies in legislative drafting may cast some doubt on the foundations for Chevron deference, in that agencies often are substantially involved in
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power concerns that also implicate stronger, not weaker, judicial oversight; thus, there should be less deference, not more. This is particularly true when one considers a fundamental objective of republican theory involving contestation rights has the objective of breaking up power between powerful actors. For a moment, it might make sense to borrow from a maxim of contract law: Ambiguities should be construed against the drafter.403 Drawing an analogy, if an agency effectively drafts legislation404, why should the agency be permitted to take advantage of ambiguities in such legislation, particularly if such ambiguities allow such agency to interpret the ambiguous statutory laws in a manner that is marginally reasonable and minimizes the liberty of the people? Fundamental fairness dictates that agencies should not be able to game the system so. But they do. They even engage in more nefarious behavior when they instigate litigation against private parties to either sidestep contestation inherent in the proper rulemaking process or force their interpretation of their own ambiguous rules against what become nothing less than victims of their arbitrary wielding of power. These methods of regulation by litigation should be odious to anyone concerned about drafting the legislation that ultimately delegates to the agencies the primary authority to interpret that legislation. Agency technical drafting assistance, which I term ‘legislating in the shadows,’ may be particularly problematic.”). 403 See, e.g., Sharpe v. W. Indian Co., Ltd., 118 F. Supp.2d 646, 650 n. 4 (D. V.I. 2000) (“[T]he maxim omnia praesumuntur contra proferentem. . . favor[s] that meaning which least benefits the drafter, if it finds one or more provisions are subject to multiple reasonable meanings.”). 404 Agencies do, indeed, often draft legislation that is submitted to Congress and Congress simply passes what has been given to them. See Walker, supra note 375, at 115.
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preserving the democratic right of contestation, not only in administrative litigation, but in the rulemaking process itself. Frankly, Chevron deference makes such bureaucratic abuses of the system more appealing to agencies. Interestingly, one of the most ardent Supreme Court supporters of the Chevron doctrine was the late Justice Antonin Scalia405 and his replacement on the United States Supreme Court, is, as of late, its most notable critic, Justice Neil Gorsuch. In Gutierrez-Brizuela v. Lynch406, a case decided prior to Justice Gorsuch’s elevation to the Supreme Court, Judge Gorsuch wrote a concurring opinion in which he lashes out against the Chevron and Brand X, largely on grounds that would look familiar to modern republican theorists and the American founders.407 He holds both Chevron and Brand X in contempt as a combined affront to the USAPA, constitutional separation of powers, equal protection, due process and the people whose liberties may now be impaired not by an independent decisionmaker seeking to declare the law’s meaning as fairly as possible – the decisionmaker promised to them by law – but by an avowed politicized administrative agent seeking to pursue whatever policy whim may rule the day….408 Id. at 113-15 (rebutting Justice Scalia’s self-delegation defense of Chevron); see also William N. Eskridge, Jr. and Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamden, 96 GEO. L. J. 1083, 1130 (2008) (highlighting key aspects of Justice Scalia’s beliefs that demonstrate a muscular reading and defense of Chevron); see generally Sunstein, supra note 378 (setting forth an in-depth discussion of Justice Scalia’s and Justice Breyer’s very deep analyses and defenses of their respective positions on Chevron). 406 Gutierrez-Brizuela, 834 F.3d 1142, 1149 (2016) (Gorsuch, J., concurring). 407 Id. at 1149-58 (Gorsuch, J., concurring) (setting forth a lengthy rebuke of the foundations of, and damaging impact of, Chevron and Brand X on practical administrative, constitutional and theoretical grounds). 408 Id. at 1153 (Gorsuch, J., concurring). 405
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In other words, he finds the whole premise of the Chevron line of cases abhorrent to the constitutional order. Gorsuch notes that the deference doctrines at issue intolerably consolidate legislative, judicial and executive power in a manner that does not make the agencies at issue partners to other branches of government. Instead, they unilaterally wield all the powerful tools of the three branches of government in a relatively unfettered way, all while being “overseen by political appointees (but often receive little effective oversight from the chief executive to whom they nominally report)….”409 This is a “rather potent mix” which, in Gorsuch’s opinion, should “warrant[] less deference from other branches, not more.”410 Lest we fear that the United States has completely slipped into the grips of tyranny, Gorsuch does point out that Chevron has not reached that point yet. He does caution that Chevron is an abdication of judicial responsibility that leaves the liberty of the people less secure than the Constitution, the USAPA
Id. at 1155 (Gorsuch, J., concurring). Gorsuch is correct in noting how little guidance from, or accountability to, politically accountable government leaders most agencies and administrative actors find themselves well insulated from any politically accountable leadership. Besides various structural and legislative buffers that “protect” the bureaucracy from politically elected or appointed executive officials, the numbers themselves demonstrate how unlikely it is that political actors will impact career federal employees. As of mid-2017, the number of employees in the federal government exceeded well over four million employees. Julie Jennings and Jared C. Nagel, FEDERAL WORKFORCE STATISTICS SOURCES: OPM AND OMB (Congressional Research Service Jan 12, 2018), available at https://fas.org/sgp/crs/misc/R43590.pdf. The number of elected leaders overseeing them was two – the president and vice president – and the number of political appointees in the Trump administration at that time was about two thousand, including a large percentage who were schedulers, body men and others who were similarly in non-policy making and non-leadership roles. Except in the smallest of agencies, most federal employees are hardly impacted by notions of political direction or political accountability. 410 Id. (Gorsuch, J., concurring). 409
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demand and underlying republican theory demand. Accordingly, he suggests that the whole body of Chevron deference caselaw be reversed and the entire concept of deference to administrative agencies forgotten. Then courts would return to “fulfill[ing] their duty to exercise their independent judgment about what the law is” in consultation with agencies, not in obedience to them.411 3.
To Salvage or Reverse the Chevron Doctrine?
As it stands right now, the Chevron doctrine arguably remains incompatible with the United States Constitution, the USAPA and, most importantly for this study, the republican concepts that are theoretically foundational to both of those sources of law. The question becomes whether the Chevron doctrine can or even should be saved or if it should, as Justice Gorsuch and other strident critics propose, simply be nullified by reversal? At this juncture, two proposals that more compatible with the overall framework of the democratic right of contestation than the status quo. The first would be to do what Justice Gorsuch advocates: Reverse Chevron, eliminate all deference to agency decisions (including Skidmore deference) and let the courts review all matters of law, including agency interpretations of the law, as is customary, using a de novo standard.412 Total reversal of the deference status quo would alleviate theoretical, constitutional and statutory concerns. As the administrative litigation system 411 412
Id. at 1158 (Gorsuch, J., concurring). Id. (Gorsuch, J., concurring).
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would return to one that simply follows the USAPA and the American Constitution, both of which are based on strong republican principles, including respect for the separation of powers, Procedural Fairness and Judicial Independence that benefit from and safeguard those key features. Such a move would remove the massive cloud of political bias inherent in politically-driven agencies interpreting statutes, often for their own benefit and to the detriment of the liberty and fundamental rights of the people. This would allow more meaningful involvement of the people in contesting decision-making processes of agencies in order to guard their liberties against arbitrariness and provide them the benefit of being able to influence policy through the courts.413 Ultimately, if Chevron is reversed, it will make it more likely that the courts will, once again, be a more powerful vehicle of democratic intervention in a manner that delimitates the respective spheres of liberty between individuals in a way that takes them seriously as equals and does so in a way that best furthers the general interest and allows for the meaningful exercise of those liberties.414 If one thinks critically from a republican, or even liberal, point of view about administrative deference in administrative litigation, the Chevron
413 Kumm, Legitimate Authority, supra note 26, at 27 (arguing that “[i]n the real world of modern territorial democracy, the right to persuade a court to veto a policy is at least as empowering as the right to vote to change policy.”). 414 Id. at 23.
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doctrine is clearly an affront to basic concepts of democratic consent and equal protection. It is starkly undemocratic, in the sense it limits the ability of the individual to engage the state in a meaningful manner when a claim of rights violation is made. This is particularly true with Chevron and Brand X deference regime, as both largely dispense with the need for public authorities to prove that they are acting reasonably vis-à-vis particular claimants. Such flippant dispensing with the duty of a contestation forum to test the reasonableness of an agency’s decision-making is very troubling. For it is the job of the republican state to ensure that fora of contestation adequately police the boundaries of the reasonable and to strike down as violations of right those acts of public authorities that … cannot persuasively be justified in terms of public reason.415 In order to ensure that job is properly done, Chevron should be reversed. If there is not will enough within the United States Supreme Court to reverse Chevron, then the Court should at least, as Catherine M. Sharkey proposes, incorporate the State Farm416 “hard look review” of “questions of discretionary policy-making authority by agencies” into Chevron’s Step Two analysis of agency statutory interpretation.417 This proposal would
Kumm, Legitimate Authority, supra note 26, at 28 (emphasis in original). Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-43 (1983) (“State Farm”) (describing the requirements of USAPA § 706 review to include rational explanation normatively connected with congressional purposes and factually grounded in the record before the agency). 417 Catherine M. Sharkey, Agency Statutory Interpretations, and the Chevron-State Farm Solution, HARVARD L. REV. BLOG (Dec. 4, 2017), https://blog.harvardlawreview.org/catskill-mountains415 416
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substantially strengthen, and answer a major criticism of, Chevron’s Step Two: It is a virtually meaningless rubber stamp of agency action that has become victim to “a wider trend of the weakening, if not the effective nullification of, judicial oversight at Chevron Step Two.”418 As discussed earlier in this subchapter, if one gets to Step Two, the agency is virtually certain to win. This is because the Chevron doctrine discourages skeptical examining of agency reasoning behind its statutory interpretations. “Under the Chevron— State Farm model, such explanations would be mandatory.”419 Sharkey seeks to effectively add State Farm review as a “Step Three” to Chevron analysis.420 This framework comes much closer to the requirements of democratic contestation, as it forces the court to ask questions necessary for the agency to justify its underlying policy reasons in a manner that most citizens would reasonably accept.421 The court forces this dialogue by utilizing State Farm-style administrative records review as a basis to conduct heightened judicial review of the policy choices made by the agency as a basis for its statutory interpretation.422
a-spotlight-on-the-problem-of-judicial-acquiescence-to-agency-statutory-interpretations-and-thechevron-state-farm-solution/ (last visited June 4, 2018). 418 Id. 419 Id. 420 Catherine M. Sharkey, Cutting in on the Chevron Two-Step, 86 FORDHAM L. REV. 2359, 2367 (2018). 421 Kumm, Legitimate Authority, supra note 26, at 27. 422 Sharkey, supra note 420, at 2384.
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While the State Farm—Chevron Framework would still allow for agency deference, it would subject the agency to a type of scrutiny that would force greater fidelity to due process. This would be the case, as it would likely induce agencies to articulate and defend the underlying policy reasons for their decisions (where relevant), rather than proffering legal briefs in support of their chosen statutory interpretation.423 Sharkey’s proposed reform would likely provide improved outcomes in administrative litigation, while also ensuring greater democratic legitimacy of the Chevron process. Therefore, until the Chevron doctrine is reversed, and all agency deference becomes a thing of the past, Sharkey’s proposal should be adopted and used in order to force agencies to explain themselves in a manner closer to the ideal protected by and embodied in the democratic right of contestation.
423
Id. at 2363.
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Chapter 4. A.
The Democratic Right of Contestation in Korean Administrative Litigation. Scope of this Chapter.
This chapter focuses on the actual environment for, and implementation of the criteria necessary to support, democratic right of contestation in Korean administrative litigation. This chapter will also explore how well governmental organs in Korea that deal with democratic contestation claims in the administrative litigation arena are doing. To that end, a brief introduction to the Korean administrative litigation and a review of Korea’s work within the Implementing Criteria framework will be done. The ensuing analysis will find that while the Korean system is fundamentally headed in the right direction, there are limitations that need to be addressed, particularly with respect to fairly major gaps within the Adequacy of Remedies and some more minor issues with Judicial Independence. Each limitation will be treated independently, then recommendations for improvement will be provided. B.
Basic Analysis.
As discussed in the prior chapter, Kumm contends that a Democratic Culture is critical to providing the environment necessary for democratic contestation to flourish in a judicial review format such as administrative litigation. This includes a commitment to “rights-based democracy” and “deliberative reason-
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giving.”424 In the late 1980s, Korea instituted a constitutional system that has supported, and been supported by, the bolstering of its Democratic Culture. As a result, Korea has seen its commitment to the rule of law, due process and fundamental rights bolstered by a constitutional order built on a framework of separation of powers and a sophisticated civil law system. While Korea has made significant strides with respect to using such structures to check the power of the administrative state, there is still some work that needs to be done to make it so such structures more properly uphold the liberty interests of the Korean people. Korea’s administrative litigation system is built on a foundation of constitutional principles425 and implemented under Korean Administrative Litigation Act426 (“ALA”), which sets forth the procedures for administrative litigation (judicial review) under Korean law.427 Although the basic framework of the current Administrative Litigation Act was put together prior to the achievement of a democratic constitution, the act has been amended on
Kumm, Legitimate Authority, supra note 26, at 30. See generally 대한민국헌법 [Constitution], arts. 101-113 (S. Kor.) (establishing the ordinary court system, including the Supreme Court and the Constitutional Court). 426 행정소송법 [Administrative Litigation Act], Act. No. 3754, Dec. 15, 1984, amended by Act No. 14839, Jul. 26, 2017 (S. Kor.), translation at https://elaw.klri.re.kr/eng_service/lawView.do?hseq=45101&lang=ENG [hereinafter “ALA”]. 427 Hee-Jung Lee, The Structures and Roles in Judicial Review of Administrative Litigation in Korea, 6 J. KOR. L. 44, 45 (2006) [hereinafter “Lee, Structures”]. It is important to note that, to the extent the Administrative Litigation Act does not cover a particular matter, such Act refers to the Court Organization Act, the Civil Procedure Act and Civil Execution Act, which are all incorporated mutatis mutandis. 행정소송법 [Administrative Litigation Act] art. 8. 424 425
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a fairly regular basis in order to improve it.428 Regardless of improvements made, there are still elements of the act that need to be changed in order to come closer to the ideal of fully operationalizing the Implementing Criteria. Below, we will review and analyze the broader environment for democratic contestation in Korea and then discuss the state of the Implementing Criteria in the Korean administrative litigation system. 1.
The Environment in Korea for Administrative Litigation.
In order to support a broad and vibrant Democratic Culture, the people living in a democratic republic must enjoy the benefits of a deliberative, inclusive and responsive government.429 Although there are areas that could stand improvement within the broader political culture of Korea, Korea reasonably satisfies these requirements. It does so because it has built up a system of laws under a constitutional order that expressly aspires to uphold the Korean people’s security and liberty,430 as well as guarantee their “comprehensive constitutional right” to pursue happiness. 431 As with other leading constitutional systems, the Korean Constitution creates structures that both empower and limit the organs of state in a manner that ideally will help meet
428 See Id. at Legislative History Heading (noting in the initial headings that the ALA was amended in 1988, 1994, twice in 2002, 2013, twice in 2014 and again in 2017). 429 Pettit, Republicanism, supra note 20, at 186-87. 430 Korean Constitution, Preamble. 431 Jibong Lim, Korean Constitutional Court and the Due Process Clause, 6 J. KOR. L. 1, 16 (2006) (discussing the broad constitutional imperatives flowing from the right to pursue happiness found in Article 10 of the Korean Constitution).
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Korea’s constitutional aspirations. To that end, Korea forces administrative agencies to act in a regularized manner under its Administrative Procedures Act432 (“KAPA”), which was created in 1996 as a procedural reform regime meant to strengthen and accelerate its democratic transition. Instituting such a law at that time helped bolster “democratic responsiveness” by “moving policy away from the military government’s status quo.”433 Indeed, to that end, KAPA has been updated on a regular basis since 1996, typically in a manner that has bolstered further democratic responsiveness. As it stands now, KAPA provides various methods in support of democratic engagement in decision-making and other administrative actions. Such statutory devices include provisions for public hearings434 and public comment on dispositions.435 In a major improvement over American law, KAPA provides this important language that is meant to help ordinary people who might wish to contest administrative dispositions by accessing administrative litigation and other contestation fora: In rendering dispositions, administrative agencies shall notify the concerned parties of whether any administrative appeal, administrative litigation, or other
432 행정절차법 [Administrative Procedures Act], Act No. 5241, Dec. 31, 1996, amended by Act No. 14839, Jul. 26, 2017 (S. Kor.) [hereinafter “KAPA”]. 433 Jeeyang Rhee Baum & Kathleen Bawn, Slowing at Sunset: Administrative Procedures and the Pace of Reform in Korea, 11 J. E. ASIAN STUD. 197, 217 (2011). 434 See KAPA art. 30 (providing for open public hearings). 435 See id. at art. 27 (presentation of opinions); see also id. at art. 27-2 (requiring that when “rendering dispositions, administrative agencies shall reflect opinions presented by concerned parties, etc. if deemed that they have convincing grounds.”).
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remedial request may be filed, and if so the filing procedure and deadline and other necessary matters.436 Given how uncommon it is for most people to contend with the state via formal appeal, litigation or other means, requiring that they provided notice of such rights is a small but practical safeguard of such rights. Just thirty years ago Korea was emerging from decades of autocracy, which had been preceded by a devastating war and colonial humiliation. Now it is remarkable to see how far the country has come with respect to not only economic development but, even more impressively, development of a governmental and legal system that has embraced a robust democratic vision. In order to keep that vision alive, it is imperative that Korea continue on its path of democratization of the administrative state by continuing to improve KAPA, the ALA and other statutory regimes that govern administrative agencies. It is important to note that the reference to “democratization” in the prior sentence does not refer to using administrative agencies to better help elected leaders implement their agenda – although that can be an important facet of democratization – but instead refers to making it so that administrative actions are kept within the bounds set by law (rule of law) and done so with an eye towards preserving both (a) the fundamental and ordinary legal rights and (b) the liberty of the people. While it is nice to believe that Korean administrative agencies might so act out of their own volition, 436
Id. at art. 26.
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experience teaches us that they sometimes need to have controls placed upon them. Such controls include administrative litigation. It is with that in mind that we will now take a closer look at Korean’s administrative litigation system to identify strengths and weaknesses. This requires touching upon the broader environment, which has already been touched upon in this section on scope, as well as particular aspects of the administrative litigation system. While not aspect of Korea’s system is perfect, particularized problems with the system are identified in subchapter 4.B.2 below. 2.
Implementing Criteria in Korea. i.
Access to Review in the Contestation Forum.
As Deborah L. Rhode wrote in 2004, “[A]ccess to justice may be an unattainable ideal, but adequate access should be a social priority.”437 Like all jurisdictions that have administrative litigation systems, Korea has issues with providing equal access to all aspects of the administrative litigation to all persons within Korean society. Some of these access issues are similar to those of the United States discussed above, including providing access to not only administrative litigation, but to all aspects of the justice system to the poor or even ordinary people. This is an issue of both resources and structural access that is not unique to Korea.
437
Rhode, supra note 231, at 20.
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A positive note concerning structural access is that legal representation in the form of qualified, trained attorneys used to be more difficult to come by than it is now. The situation continues to improve. With the advent of the law school system in Korea in 2009, we have seen the number of attorneys grow substantially. This growth will naturally provide more people with access to legal counsel to help them to engage with, and even wage claims against, administrative agencies. It will take time to see how much the relatively newly expanded (and continuing to expand) ranks of trained attorneys will impact access to justice efforts in Korea. While that is being determined, efforts need to be made to continue to explore the balance between speed and efficiency and due process in actual administrative litigation court procedures, with a particular focus on making it so fewer people actually need professional legal guidance to engage the state.438 On the negative side, Korea does limit the ability of its courts to review administrative rulemaking. This limitation or contrast between American administrative actions and Korean dispositions was briefly noted in part i of subchapter 2.C.1. In the American system, wherein hard look review of administrative rulemaking is common and has specific procedures with respect to notice, comment, record-keeping and other matters that provide
438 Rhode, supra note 231, at 195 (advocating for procedural reforms, while noting the difficulty of “challenging entrenched legal cultures and grappling with the dual and sometimes contradictory aims of introducing speed and efficiency whilst ensuring high standards of fair trial.”).
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both for citizen engagement in rulemaking and judicial oversight of such processes. Ultimately, in the United States, guarding the process – ensuring due process – is the hallmark of American administrative rulemaking and judicial review thereof.439 In Korea, the effectiveness or validity (효력) of the outcome of rulemaking is most important but the process leading up to the final rules is not emphasized nor is it generally safeguarded by judicial review.440 This procedural limitation blocks ordinary Koreans from being able to enjoy full contestational rights. In this case, we are referring not only to the right to challenge a regulation but the right to be engaged in the rulemaking process – having strong judicial review of such engagement would help ensure that contestation and related due process rights are observed. As Keum suggests, there are reforms that Korea could make based upon the American model. These suggestions include requirements for the creation of a notice, comment and record-keeping paper trail of the rulemaking process.441 Such reform suggestions are entirely in line with the requirements of the right of contestation, as outlined by Pettit.442 In order for such reforms to be correctly implemented, there would need to be new processes
Keum, Rule-Making, supra note 251, at 314. Id. 441 Id. at 325. 442 See, e.g., Pettit, Republicanism, supra note 20, at 186 (noting that, in order to create a basis for contestation, state actors should create, maintain and, as necessary, produce to the public or claimants in contestation proceedings records of their decision-making processes). 439 440
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implemented with respect to both the administrative duties of the agencies and the types of litigation and court orders that can issue to force agency compliance with such duties.443 As Keum suggests, these reforms would require an entirely different process from the existing administrative rules enactment process (행정규칙의 제정철차).444 Such reforms would make it possible for the Korean people to broaden their contestation rights both in the rulemaking process and in the courts that could oversee such process for conformity with basic notions of due process and fairness. ii.
Judicial Independence.
Of course, with Korea being a civil law jurisdiction, the role of its judges is different from the role of common law judges. Within Kumm’s Socratic contestation framework, the role of the civil law judge – at least at the trial stage – appears to be preferable. This is the case because civil law’s inquisitorial system allows judges to have more control over investigations into, and questions asked of, administrative agencies in a contestation environment. This makes them better able to directly engage in Socratic questioning of the decision-making by agency experts.445 In order for such
Keum, Rule-Making, supra note 251, at 325. Id. 445 Kumm, Legitimate Authority, supra note 26, at 22 (arguing that generalist judges can appropriately question administrative experts’ reasoning, given that the “specific wisdom of Socrates and … judges lies not in what they know about theories of justice or policy, but in the questions they know to ask others who have, at least prima facie, a better claim of wisdom on their side.”). 443 444
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questioning to be meaningful, it must be administered by judges that are structurally and procedurally independent enough to exercise their discretion in providing strong oversight of the administrative state. Given the abuses that were heaped upon the Korean population by Japanese colonialization and the oppressions suffered at the hands of the various dictators that followed Korean independence until the late 1980s, it should be no surprise that the role of courts in reining in the power centers of the pre-democracy years – the military, chaebol and the bureaucracy – became a point of heated discussion in 1987 between those who trusted government more than the people and the people who trusted judges more than the rest of the then-prevailing power structure. As a result of that debate, an initially weak constitutional court sliced off jurisdiction over certain matters for the ordinary court structure. This is important to note for two reasons. First, the infusion of the constitutional court onto a constitutional government structure that is otherwise patterned after the United States Constitution was, at the time, a strange innovation. Second, the system that was created actually backfired against the pro-government side, as (a) the Constitutional Court and the Korean Supreme Court together provide institutional capacity to protect the rights of the people that either alone would lack; and (b) the Constitutional Court has proven to provide a powerful mechanism for ordinary people to challenge the state via its constitutional
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complaint system, a system which would not fit the ordinary court structure well at all. Most importantly, and despite questions about how well the courts would protect the rights of the people after 1988, we have seen both the Constitutional Court and the ordinary courts develop some key aspects of strength and independence since that time. It is also important to note that within Seoul, there has been an Administrative Court established since 1998. 446 Such court is at the same level as district courts, which are the basic trial courts in Korea, and it “hears such cases as prescribed by the Administrative Litigation Act and those falling under the competence of the administrative court under other Acts.”447 There is no other specialized administrative court in Korea. Having such a specialized contestation forum in the capital does provide a strong signal concerning the importance of courts in hearing claims against administrative agencies. We will now analyze how well Korean courts, particularly in the administrative litigation context fair within the framework of factors identified by Ferejohn et al. described in subchapter 2.C.2 and also used to analyze the American system in the preceding chapter: 448 a. Strength of Judicial Review Authority: Under the ALA, Korean ordinary courts, including the administrative court, have clear authority to Choi, supra note 75, at 251. 법원조직법 [Court Organization Act], art. 40-4 (S. Kor.). 448 Ferejohn et al., supra note 259, at 1-6. 446 447
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hear a variety of complaints against dispositions of administrative agencies. The breadth of the jurisdictional rules allows for several types of suits against administrative agencies by claimants who believe dispositions or omissions of an agency have impaired their rights.449 The breadth of the definitions of disposition450 and omission451 are so wide that it is clear the courts have sweeping jurisdictional authority over any type of non-rulemaking administrative matter, no matter how grand or how small. As with other types of actions in Korea, courts hearing administrative litigation claims have authority that allows the courts to employ robust and probing judicial review procedures. These and other features indicate that Koran courts have clear and solid judicial review authority. b. Term of Judicial Appointment: With respect to judges in Korea, it is important to note the differences in manner and term of judicial appointment for the nine Justices on the Constitutional Court,452 the fourteen Justices on the Supreme Court453 and the over 3,000 other judges of the ordinary
See 행정소송법 [Administrative Litigation Act], art. 3 (S. Kor.) (providing the classification of a strong variety of administrative suits). 450 The term “‘disposition’ means the exercise of or refusal to exercise the public authority by an administrative agency as function of law enforcement in relation to a specific fact, other similar administrative actions and an adjudication on the administrative appeal….” 행정소송법 [Administrative Litigation Act], art. 2 (S. Kor.). 451 The term “‘omission’ means the failure of an administrative agency to take a certain disposition for a reasonable period of time, notwithstanding its legal obligation to do so, in response to an application filed by a party.” Id. 452 헌법재판소법 [Constitutional Court Act], art. 3 (S. Kor.) (specifying the number of Constitutional Court Justices is nine). 453 법원조직법 [Court Organization Act], Act No. 3992, Dec. 4, 1987, amended by Act No. 14470, Dec. 27, 2016, art. 4 (S. Kor.) (specifying the number of Supreme Court Justices is “14, including 449
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courts.454 Pursuant to the Korean Constitution, Justices of both the Supreme Court and the Constitutional Court serve terms of six years and, other than the Chief Justice of the Supreme Court, they may be reappointed.455 As for other judges, their terms of appointment are ten years and they, too, may be reappointed.456 None of them may be removed from office other than “by impeachment or a sentence of imprisonment without prison labor or heavier punishment….”457 So, Korean judges are fairly safe while in office, yet they have relatively short terms. In comparison, American judges serve for life, Japanese Supreme Court Justices serve on an ongoing basis only subject to decennial retention elections,458 German Constitutional Court judges serve twelve years and may not be reappointed,459 Slovenian Constitutional Court judges serve
the Chief Justice”), translation at https://elaw.klri.re.kr/kor_service/lawView.do?lang=ENG&hseq=41219&joseq=JO0005000. 454 각급 법원 판사 정원법 [Act on the Prescribed Number of Judges of Various Levels of Courts], Act No. 1529, Dec. 16, 1963, amended by Act. no 12951, Dec. 31, 2014, art. 1 (S. Kor.) (setting the number of judges in Korea at 3,214), translation at https://elaw.klri.re.kr/eng_service/lawView.do?hseq=33412&lang=ENG. 455 대한민국헌법 [Constitution], arts. 105, 112 (S. Kor.). 456 Id. at art. 105. 457 Id. at art. 106, 112 (both articles contain the same language, with the former pertaining to the ordinary courts and the latter pertaining to the Constitutional Court). 458 日本国憲法 [Constitution], art. 79 (Japan), translation at http://japan.kantei.go.jp/constitution_and_government_of_japan/constitution_e.html. Notably, no Japanese Supreme Court Justice has ever been recalled through a retention election. Editorial, Review of Top Justices , ASAHI SHIMBUN (Aug. 27, 2009), http://www.asahi.com/english/Heraldasahi/TKY200908270050.html (last visited May 30, 2018) [hereinafter “Top Justices”]. 459 Federal Constitutional Court [Bundesverfassungsgericht], Structure, http://www.bundesverfassungsgericht.de/EN/DasGericht/Organisation/organisation_node.html;jsessionid=CD39B6DFC4C8F711A376869BBC9 04714.1_cid370 (last visited June 6, 2018) [hereinafter “Structure”].
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nine years and may not be reappointed,460 and Austrian Constitutional Court judges serve “for life” but must, like their Japanese top court counterparts, retire at 70.461 Based upon comparisons with the foregoing jurisdictions and dozens more, it appears that Korean judicial terms for the highest courts are not ideally situated. For purposes of independence it is generally considered better for judges to (a) serve for life or longer terms; and (2) not be subject to reappointment by political branches of government.462 Korea violates both of these simple tenets. As a result, Justices on both the Supreme Court and the Constitutional Court risk being punished for rulings that the government or other powerful interests, such as those of potential post-judicial employers discussed in the next paragraph, may not like.463 Furthermore, Justices who may be seeking re-appointment, similarly to politicians seeking re-election, may be tempted to either undermine or uphold actions of litigants before them in order to curry favor with those who have re-appointment power over them. While it is difficult to prove the actual thoughts in the minds of past and present Justices, the likely perception of such possibilities, and their implications for the Ustava Republike Slovenije [Constitution], art. 165 (Slovn.) (Tiny Slovenia was included because, out of the jurisdictions searched, it has the shortest term for constitutional court judges next to that of Korea – it is still 50% longer than Korea’s term.). 461 Nigel Foster, AUSTRIAN LEGAL SYSTEM AND LAWS 38-9 (Cavendish Publishing 2003); see Top Justices, supra note 458 (describing 70 as the mandatory retirement age for Japanese judges). German Constitutional Court terms are also limited by mandatory retirement at 68. Structure, supra note 459. 462 See, e.g., id. (“The Justices are elected to serve a twelve-year term…. To ensure their independence, there is no re-election”.). 463 Ferejohn et al., supra note 259, at 2. 460
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institutional legitimacy of the relevant Justice and the court system, when the next politically-charged decision is made, should give us all pause. Beyond re-appointment concerns, there is a more pernicious issue that undermines some degree of the independence – whether real or just perceived may be debated – of Justices on both top courts: “Studies in Korean legal sociology have identified [this issue as] the distinct legal culture of ‘the privilege of former office’.”464 This privilege is the result of a custom in Korea that “judges grant the request of … lawyers who have recently retired from the court….”465 Indeed, they win an “exceptionally high rate” of trials by “utilizing their close connections to the incumbent justices in order to personally influence the decision.”466 Such a system has potential for a perverse impact on the outcome of cases, though not necessarily systemically in favor of any particular interest group other than the judges themselves. The incentive to trade in influence on the court for post-judicial pecuniary gain is supported by “strong evidence” and, not surprisingly, it is cited as “the main reasons that judicial officers become lawyers after their retirement….”467 In fact, looking at a snapshot of data from 2000 to 2004, among lawyers, 89.8 percent of retired judges … practiced legal services in the same Eunseong Oh, The Judicialization of Politics and the Independence of Constitutional Court: The Case of South Korea, J. POLITICAL INQUIRY 47, 54 (Spring 2016) (quoting Jongcheol Kim [김종철], Judicial Independence and the Necessity for Judicial Reform Focused on Judicial Democratization: The Case of Korea, 41 KANGWON L. REV. 137 (2014) (available only in Korean) [hereinafter “Judicial Reform”]). 465 Id. 466 Id. 467 Id. (citing Kim, Judicial Reform). 464
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jurisdiction they had previously served in.468 That information is a bit dated and does not reflect the impact that Article 31(3) of the Attorney-at-Law Act might have had since its introduction in 2011. A focused look at postjudiciary work for Justices on the Constitutional Court and Supreme Court indicate a similar pattern of influence peddling in private legal practice or, at least for former Constitutional Court Justices, directly in the political realm. Of 35 Supreme Court Justices who have retired since 2000, 23 are lawyers, 9 are professors, and 3 are not classified as working.469 As of 2016, of the 37 former Constitutional Court Justices who have ever retired from the court only 6 Justices retired at retirement age and only a total of 9 fully retired.470 Five went on to work as elected or appointed political officials and 16 went on to work for law firms representing clients and the others became law professors or involved in other types of legal work.471 While jumping from the judiciary to law practice does pose issues with respect to undermining the fairness of proceedings in particular cases in a manner that raises serious due process, rule of law and democratic contestation issues, the idea of using the Constitutional Court as a stepping
468 Id. (citing Y. H. Lee, Legal Professionals’ Corruptions and the Downside of Social Capital in South Korea, 18 KOREAN J. OF CRIMINOLOGY 441 (2006) (available only in Korean)). 469 E-mail from Seung Yup Lee, Judge, Incheon District Court, to Troy C. Fuhriman, Associate Professor of Law, Kyungpook Nat’l U. Law School (May 23, 2018 10:08:47 AM KST) (on file with author) (responding to a query from the author, Judge Lee compiled and provided relevant data about retired Supreme Court Justices). 470 Oh, supra note 464, at 55. 471 Id. (Notably, of those that went onto become politicians, three went to the National Assembly and the others attained high political appointments from the president).
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stone to high elected or appointed office is seriously disturbing in its potential to corrupt, or at least undermine the independence of, Justices. In order to run for, or get appointed to office, they have to engage in overtly political actions to curry favor with political power brokers, party leaders, legislators and/or officials in the executive branch, who will either support their election or appoint them to office. It is not unreasonable to expect that Justices with political aspirations might be cognizant of “[t]he fact that their position after retirement depends on the goodwill of … politicians….”472 While it may be constitutionally questionable whether former judges could be prohibited from running for or getting appointed to high office, there should be some consideration put into legislating, or amending the Korean Constitution to provide, a cooling off period between leaving any judicial position and joining the legislative or executive branches. Transitioning from judge to professor is the noblest and ethically sound of the common post-judicial positions possible. However, the fact that some former judges are serving as professors could just be a result of the ethical prohibition contained in Article 31(3) of the Attorney-at-Law Act forbidding any former judge or public prosecutor from taking “cases handled by the state agency in which he/she has worked from the point of time one year before his/her retirement till his/her retirement, such as a court…” for one year after
472
Id.
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such official’s retirement date.473 Importantly, such statutory provision eliminates the possibility of practicing before any court as the Supreme Court, high courts, district courts and branch offices of district courts as well as the Supreme Prosecutors' Office, high prosecutors' offices and district prosecutors' offices and branch offices of district prosecutors' offices … [are] deemed [to be] the same state agency.474 As a result of this restriction, some former judges have been known to take a professorship for a year or two while they await the opportunity to practice law before the courts of Korea.475 Mandating that judges have a cooling off period before they are allowed to practice in the courts is helpful to avoid both the appearance of impropriety and also lessen the impact of having someone who was a Supreme Court Justice coming in to exert influence at any court the day, week or month after leaving office. More should be done to ensure that both the appearance and likelihood of corruption are reduced. If this author could indulge to make suggestions for amending the Korean Constitution, it would be to lessen the structural pull of political, even majoritarian, considerations in the courts and, unrelatedly,
변호사법 [Attorney-at-Law Act], Act No. 6207, Jan. 28, 2000, amended by Act No. 14584, Mar. 14, 2017, art. 31 (S. Kor.), translation at https://elaw.klri.re.kr/kor_service/lawView.do?hseq=42632&lang=ENG. 474 Id. 475 See Lee, Kyung Mi [이경미], 권력 누린 대법관, 퇴임 뒤엔 ‘고액 수임’…변협 반발 초래 (Mar. 27, 2015, 10:55 KST), http://www.hani.co.kr/arti/society/society_general/683812.html#csidx74ca3ec597d8691b9971 a64ca15a614 (last visited June 7, 2018) (citing instances of specific former Supreme Court Justices taking a professorship ostensibly as a weigh station on the way to lucrative law practice). 473
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increase the pull of majoritarian tendencies in the executive.476 The proposal for the courts is rather simple: Follow the German model and both (a) double the term of Supreme Court and Constitutional Court Justices to twelve years and (b) make it so they cannot be reappointed. This will lessen the temptation or even perception of temptation that Justices might be overly politicizing the judiciary or judicializing politics. For perception purposes, it will also make it so the term of Korean Justices does not so closely resemble the four-year term of members of the National Assembly477 or the term of the president, who is elected for only one term of five years.478 The more out of sync judicial terms are with the political cycle, the better it will be for the perception and actuality of Korean Judicial Independence. Additionally, it would be wise to increase the length of the cooling off period between judicial retirement and practice before the judiciary. If constitutionally feasible, prohibitions on retired judges assuming high elected or appointed offices for a period of some years would also help preserve the actuality and perception of potential corruption coming from a judge who walks off the bench into a plum political position. If such a cooling off period is not feasible, then amending the Constitution to provide such a cooling off There are some proposals to make it so the president of Korea has the possibility of being reelected for a second term, like the American president, making the president more politically powerful and accountable, at least during a first term. Andrew Jeong, South Korean President Proposes Extending Term Limits, WALL STREET J. (Mar. 22, 2018), https://www.wsj.com/articles/south-korean-president-proposes-extending-term-limits1521710703 (last visited Oct. 13, 2018). 477 대한민국헌법 [Constitution], art. 42 (S. Kor.). 478 Id. at art. 70. 476
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period should be considered as a part of a broader constitutional reform package.479 When one assumes high public office, one takes upon oneself a high ethical obligation to serve the public good. This is akin to a fiduciary relationship between the high public official and the people. It is paramount that the trust inherent in such relationship not be breached during or after leaving high office. Therefore, any perception of using past high office as a basis for influence peddling in the domain of one’s former public office should be banned for a good period of time. The one-year prohibition in Article 31 of the Attorney-at-Law Act is a good start. That ban on returning to practice should be longer, possibly an additional two years, for a total of three – enough time to more substantially separate the man from the power of his former office. As for the length of a cooling off period before assuming political office, maybe taking a cue from the highly ethical Trump Administration is called for: Five years seems appropriate, as that is long enough to push the move into political office past at least one electoral cycle. c. Salary Protection: Like the United States or even Japan, the Korean Constitution also protects judicial pay from reduction; however, there is a
As for the recommended amount of time that a post-retirement cooling off period should be before entering law practice or assuming political office should be, the author will use his own experience as a guide. As an appointee of the President of the United States to serve in a senior leadership position in the Trump Administration, the author was required to enter into an ethics agreement which, inter alia, prohibits him from lobbying his former part of the executive branch for five years. Other activities, such as representing foreign governments are banned for life.
479
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caveat that it may be reduced “by disciplinary action.”480 While this is a fairly strong protection for remuneration, the caveat does leave open an avenue that could be abused. It is important that such caveat be carefully monitored in order to guard against abuse. d. The Difficulty of Changing Court Composition: As mentioned in Chapter 3, the size of the Korean Constitutional Court is set in the Korean Constitution at nine; however, the size and organization of the ordinary courts are decided by act of the National Assembly. The National Assembly has, via the Court Organization Act, set the number of Supreme Court Justices at the same number of ordinary Justices on the Japanese Supreme Court: fourteen. Unlike the Japanese Supreme Court, which adds the Chief Justice to that number for a total of fifteen, the Korean Supreme Court counts the Chief Justice as one of the fourteen.481 Regardless of such interesting similarities with Japan, the most important considerations are that it would be much more difficult to change the size of the Constitutional Court, as it would require amending the Constitution, than it would be to change that of the Supreme Court or any of the inferior courts, which would only require legislation. Nevertheless, when the number of Justices on the Supreme Court remains the same for a long time, it will likely become the functional equivalent of an unwritten principle of the Korean Id. at art. 106. 법원조직법 [Court Organization Act], art. 14 (S. Kor.); see also Top Justices, supra note 458 (discussing court composition and appointment issues). 480 481
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constitutional order. Until that time is reached, court-packing is still an option that needs to be guarded against in order to protect the judiciary from political takeover. As for changing who is actually on the Supreme Court, it should be easier for political bodies to influence that in Korea than in other jurisdictions, exactly for the same reason cited in the preceding analysis on judicial terms: The current term is so short that it is quite possible for certain political actors, particularly coalitions to wait out those Justices (on either of the highest courts) they view as being out of sync with a certain political agenda and replacing them. This danger is slightly more acute with the Supreme Court than with the Constitutional Court due to differences in appointment mechanisms: For the former, other than the Chief Justice “[t]he Supreme Court Justices [are] … appointed by the President on the recommendation of the Chief Justice and with the consent of the National Assembly…”482, while for the latter court, each of the president, the National Assembly and the Chief Justice of the Supreme Court evenly divide control over court slots (3 each).483 The way the power is so divided for the Constitutional Court and shared for the Supreme Court, it would be quite difficult, although not impossible, to have a political agenda drive a composition takeover. Given the safeguards built in, this factor militates in favor of a judicial independence. 482 대한민국헌법 [Constitution], art. 104 (S. Kor.). The Chief Justice of the Supreme Court is appointed by the president with National Assembly consent. Id. 483 Id. at art. 111.
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e. Level of Political Fragmentation: “Political fragmentation gives courts space to take more independent action.”484 Given that Korea has a strong level of political fragmentation, especially for a unitary state, we have seen their courts assert themselves much more than, for example, the courts of Japan.485 Korea has a much higher level of fragmentation than Japan but a significantly lower level than the United States. In Korea, unlike Japan, there is a strongly dynamic multi-party party system that has seen recurrent shifts in power at the executive level and also in the National Assembly in its short democratic history. The shifts are frequent enough that no party can feel secure that if it is in power now that it will maintain power for many years to come. That insecurity, along with the difficulty of raising a strong enough politically cohesive coalition necessary to amend the constitution, meddle with judicial appointments (court-packing, etc.), or even pass legislation to override court rulings makes it more likely that Korean courts will be respected as independent and be more likely to assert such independence.486 The degree of political fragmentation in Korea does provide judges with room to independently do their jobs. f. Jurisdiction: The Korean Constitution sets the basic jurisdictional contours of both the Constitutional Court and the Supreme Court. The Ferejohn et al., supra note 259, at 6. Ginsburg, supra note 277, at 617-618 (explaining Korea’s higher level of political fragmentation, vis-à-vis Japan, leads the Korean administrative litigation courts are more active in checking administrative acts than their Japanese counterparts). 486 See id. (discussing these fragmentation factors as leading to greater judicial independence). 484 485
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contours that matter most for this study – those related to protecting the liberty and fundamental rights of the people from arbitrary and otherwise oppressive administrative actions – are well set. Unlike the American constitutional system but similarly to the German system, Korea splits its judicial review functions between the Constitutional Court and its Supreme Court-led ordinary courts. The Supreme Court has jurisdiction to conduct “final review of the constitutionality or legality of administrative decrees, regulations or actions, when their constitutionality or legality is at issue in a trial.”487 After the “exhaust[ion of] all the relief processes which are available under … statute[]”488, [a]ny person whose fundamental rights guaranteed by the Constitution is infringed due to exercise or nonexercise of the public authority, excluding judgment of the court, may request adjudication on constitutional complaint to the Constitutional Court:489 So, judicial review of activities of the Korean administrative state can take place utilizing administrative litigation or via the Constitutional Court’s constitutional complaint system. Due to the provision in the Constitutional Court Act that requires exhaustion of other relief processes, and the interplay between such act and the ALA, a ‘disposition’ may not be reviewed via 행정소송법 [Administrative Litigation Act], art. 107 (S. Kor.). Lee, Structures, supra note 427, at 64. 489 헌법재판소법 [Constitutional Court Act], Act No. 4017, Aug. 5, 1998, amended by Act No. 15495, Mar. 20, 2018, art. 68 (S. Kor.), translation at https://elaw.klri.re.kr/eng_service/lawView.do?hseq=47509&lang=ENG. 487 488
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constitutional complaint procedures and must be challenged in the ordinary courts.490 To the extent an administrative activity is not categorically a ‘disposition,’ then a claimant may pursue a constitutional claim in order to protect his or her fundamental rights.491 While it may be possible for the political branches to attempt to alter or restrict certain aspects of jurisdiction, it seems unlikely that they could be successful in doing so without amending the Constitution itself. For the Constitutional Court Act and the Administrative Litigation Act do not, in and of themselves, grant fundamental jurisdiction to the courts subject to such acts. The acts simply reiterate and explain how the courts should operationalize their constitutionally granted jurisdictional authority. Accordingly, the jurisdiction of Korean courts over matters of fundamental importance to this study appears to be stronger than that of American courts. Given the strength of jurisdictional claims that Korean courts have, the big issues to consider are then whether the courts use that jurisdiction to do justice.
There has been at least one narrow exception made to this rule by the Constitutional Court, which allowed a constitutional complaint to be filed bypassing administrative litigation when procedures similar to those in the ALA had already been exhausted by the claimant under Article 266-4 of the Criminal Procedure Act and the state actors were already ignoring a court order from the prior litigation. See Constitutional Court [헌법재판소] [Const. Ct.], 2009Hun-Ma257, June 24, 2010 (S. Kor.) (“[A]sking the complainants to initiate an administrative litigation procedure would be no different from enforcing an unnecessary bypass procedure.”). 491 Lee, Structures, supra note 427, at 64. 490
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iii.
Procedural Fairness.
Article 12 of the Korean Constitution starts with this promising aspiration: “All citizens shall enjoy personal liberty.”492 Notably, that same article in the Constitution sets forth a string of rights, including delineated due process rights in the criminal context.493 Although the Korean Constitution does not explicitly provide clear non-criminal applications of due process, early in this democratic era the Constitutional Court established that broad concepts of procedural and substantive due process are inherently built into the Korean Constitution, including in the administrative law context.494 Since that time, sweeping notions of due process have been incorporated into Korean constitutional jurisprudence.495 Although there are instances of due process rights being violated in Korea, there are not any of a systemic nature that appear so out of step with international reality to deserve special mention in this study of administrative litigation. What does deserve special mention is how aggressive the Constitutional Court has been in incorporating broad swaths of Anglo-American due process concepts into the fabric of Korean Constitutional jurisprudence. This
492 대한민국헌법 [Constitution], art. 12 (S. Kor.). It would be nice to amend the language to: “The people…” instead of “All citizens…”, in order to reflect the desire to clearly protect the liberty interests of the growing immigrant population in Korea. 493 Id. 494 Constitutional Court [헌법재판소] [Const. Ct.], 1990Hun-Ka48, Nov. 19, 1990 (S. Kor.). 495 See, e.g., Constitutional Court [헌법재판소] [Const. Ct.], 2007Hun-Ma700, January 17, 2008 (S. Kor.) (stating that the due process principle in Article 12, Section 1 of the Korean Constitution “applies not only to criminal procedure but all the governmental actions.”).
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approach continues to demonstrate that Korea is serious about protecting the rights of its people and having democratically robust institutions with legitimacy in the eyes of the people. Notably, this approach by judges was not generally presaged by academic theoreticians. iv.
Adequacy of Remedies.
In part iii of subchapter 2.C.2 of this study, German and English administrative litigation remedies are discussed in order to establish a baseline for the type and nature of remedies that should be made available to administrative litigation courts in order to satisfy the requirements of the democratic right of contestation. Korea’s administrative litigation remedial system is an area of significant concern in this study. Due to the complexity of, and need to address thoroughly, the issue, it will be the subject of heightened focus for Korea in this study. Such discussion is found in subchapter 4.C below. C.
Remedial Issues within Korean Judicial Review.
Possible deficiencies identified within Korean administrative litigation remedies served as the initial catalyst of this study. Unfortunately, during the years that the research for this study was undertaken, such possible deficiencies or limitations remained in place. Even after researching strengths and other weaknesses of the Korean system, the lack of sufficient remedies continues to be of heightened concern. 206
Given that achieving remedies sufficient to alter the behavior of the administrative state is the aim of administrative litigation, the remedial limitations of the Korean system stand out as being arguably the element of the Korean administrative litigation system most out of sync with the Implementing Criteria of the democratic right of contestation. Given this singular status, the state of Korean administrative litigation remedies and needed reforms thereto are discussed and analyzed in some detail below. 1.
Remedial Standards.
In part iii of subchapter 2.C.2 basic remedial criteria found in the English and German administrative litigation systems were deemed to be reasonably sufficient to meet the requirements of democratic contestation. American remedies were later discussed in Chapter 3 and found to be relatively sufficient as well. This is the case because the suite of remedies each jurisdiction offers to the successful litigant against an offending administrative body “require[] the public body to alter its decision” and, as appropriate, “provide some compensation.”496 Given that there are different facts, varying categories of illegal administrative action and other variables that make each case unique, courts need to be able to align remedies to fit the needs of each particular case. Thus, litigants and courts need a suite of
496
Pettit, Republicanism, supra note 20, at 197.
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remedies to choose from in administrative litigation that meet the Remedial Criteria (as defined in Chapter 2). When an administrative actor engages in illegal administrative activities, whether a disposition, omission or another type of action, there needs to be a full range of remedies available to check such state actor’s abuse, or illegal non-use, of administrative powers. As was illustrated in Chapter 2, an adequate suite of remedies should include at least court authority to (1) compel public officials to act in a particular way; (2) prohibit public officials from taking certain future actions; (3) rescind administrative actions; or (4) award damage in tort for actions by administrative actors. The four aforementioned items comprise the four elements of “Remedial Criteria” identified in Chapter 2. Any jurisdiction that does not legally provide, and have its courts enforce, a full suite of remedies necessary to meet the Remedial Criteria should be considered one that does not meet the demands of democratic contestation. Unfortunately, Korea is one such system. While it has enacted a decent foundation of remedies, it lacks sufficient remedial measures to fully bridle the administrative state in a manner necessary to support practical realization of the people’s liberty interests. That is not to say that the Korean administrative litigation is remedially feckless. It is not feckless, but it is
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limitations that need to be rectified. Such limitations and how to remedy them will be addressed below. 2.
Korea Has Both Strong but Limited Remedies.
Korean administrative litigation has grown in importance by effectively responding to the contestational expectations of a people that have become increasingly comfortable with, and expectant of, a robust democratic order. Despite its great progress as a democratic state, elements of administrative litigation remedies used in other jurisdictions are absent in the Korean system – most notably, mandatory injunctions are completely missing, and the prohibitive injunction equivalent is relatively weak. Such limitations hinder the Korean people from being able to fully benefit from remedies that courts in other jurisdictions use to protect and support individual liberty from arbitrary and oppressive acts of state actors: positive and negative injunctive relief. In order to understand why such relief remedies would be useful, it is necessary to have a basic understanding of the types of litigation and remedies available in Korean administrative litigation cases. Since 1988, Korea’s ALA scheme has provided for the following categories of administrative litigation suits: (1) appeals suit; (2) party suit; (3) public suit; and (4) agency suit.497 These categories are reflective of differences in the relationships of the parties to each other and the subject
497
ALA, art. 3.
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matter of the litigation, the procedural posture leading to the suit and the actual subject matter of the suit itself. An appeals suit is a court action instituted to challenge an administrative agency’s disposition or omission.498 A party suit is an action concerning legal relations tied to a disposition or under public law, “in which one of the parties to the legal relationship is a defendant”499 The public suit is instated by a person without “any direct interest in order to seek the correction of violations by the State or organs of public entities”500. Finally, an agency suit involves certain disputes “over the existence or exercise of power between agencies of the State or organs of public entities”501. The primary type of administrative litigation in Korea is a subclassification of appeals suit, Korean language term for which is translated into in English in several ways, including “revocation suit”502, “rescissory action”503, or “cancellation proceedings”.504 This study will refer to it as “revocation litigation.” Korean revocation litigation appears to be quite similar to German Anfechtungsklage. While the Korean and German procedures are not completely identical, the end result or remedy sought is the Id. Id. 500 Id. 501 Id. 502 ALA, art. 4. 503 Lee, Structures, supra note 427, at 180. 504 LEGAL ADMINISTRATIVE SERVICES, SEOUL METROPOLITAN GOVERNMENT, Administrative Litigation, http://legal.seoul.go.kr/legal/english/front/page/contents.html?pAct=administrativeLitigation (last visited May 18, 2018). 498 499
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same: The administrative act at issue is declared null and void in a manner that has been described via translations into English as being revoked, quashed, canceled, invalidated and rescinded.505 Such remedial orders also appear to be similar to orders to set aside agency actions under the USAPA,506 since they have only retroactive effect and do not directly constrain (as with a prohibitory injunction) or compel future administrative action (as with a mandatory injunction). The ALA provides for other types of actions and attendant remedies, such as nullity-confirming actions,507 which are essentially actions for declaratory relief.508 As for the equivalent of official tort-claims liability, Korea’s constitution very clearly specifies that individuals have the right to seek damages thus: In case a person has sustained damages by an unlawful act committed by a public official in the course of official duties, he may claim just compensation from the State or public organization….509
Singh, supra note 87, at 211 (With respect to Germany: “Actions for rescission, which are the most prominent and common among all actions …, are instituted for seeking rescission or invalidation of an administrative act.”); Lee, Structures, supra note 427, at 181 (With respect to Korea: “[A]ctions for rescission or declaration of nullity of an administrative disposition seek to eliminate or confirm the inexistence of the legal effect.”). 506 See 5 U.S.C. § 706(2) (2018) (stating that a reviewing court shall “hold unlawful and set aside agency action, findings and conclusions” that are illegal for various reasons, such as arbitrariness, failure to observe required procedures and for other reasons). 507 See ALA, art. 4(2). 508 Lee, Structures, supra note 427, at 56. 509 대한민국헌법 [Constitution], art. 29(1) (S. Kor.). (translation provided at http://www.ccourt.go.kr/home/att_file/download/Constitution_of_the_Republic_of_Korea.p df). 505
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Although they could ostensibly be heard under the ALA, Korean courts generally treat tort claims as civil suits not administrative litigation actions. 510 With the inclusion of tort claims and related remedies, Korea clearly has a variety of categories of actions that can give access to strong, yet incomplete, remedial measures. Such remedial gaps are further discussed below. The Korean ALA allows judicial appeals when Korean administrative actors engage in certain omissions or inaction (부작위).511 While litigants in such a suit may have a court confirm the illegality of an omission by an administrative agency, there is no remedy available that can adequately rectify the government’s wrongful inaction or negative action. Korea has no equivalent to common law mandamus or Germany’s Verpflichtungsklage in its code. Court rulings have foreclosed the possibility of creative interpretation of such code by courts to allow any similar remedial action.512 While Korean courts are powerless to compel affirmative administrative compliance with the law, they are equally powerless to stop an affirmative administrative action with a permanent injunction.513 Furthermore, they have only limited power through Article 23 of the ALA to provide for the temporary suspension of a disposition, a remedy with an effect akin to a Lee, Structures, supra note 427, at 66. ALA, art 4(3). 512 Lee, Structures, supra note 427, at 59. 513 Chung, Ha-Joong [鄭夏重], Introduction of Preventive Right Protection to Amendment of Administrative Litigation Act [行政訴訟法 改正에 있어서 豫防的權利救濟의 導入], 36 KANGWON L. REV. [강원법학] 349, 351 (2012). 510 511
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temporary injunction. Despite such remedial power to suspend execution, as Chung points out, unlike German courts, Korean courts lack the ability to issue a temporary or permanent “preventive action injunction.” This is the case even if it can be proven ‘“it is imminent that an administrative agency will make an illegal disposition in the future’”514. Chung sees this power gap as being unacceptable, particularly with respect to dispositions that have been taken in the past that one can reasonably expect the administrative actor in question to try to take again as a matter of proving “imminence” of an uncommenced action.515 The aforementioned remedial power gaps make it so that courts cannot order officials to simply stop abusing the rights of the people, including extremely arbitrary and potentially damaging abuses of average citizens. As explained above, this is a limitation that sets Korea apart from Germany, England and the United States. It also places Korea out of step with its closest democratic neighbors, Japan and Taiwan, who have had versions of such remedies available in their administrative litigation systems since 2005 and 1998, respectively.516 So, Korea’s remedial gap is clearly not a matter of legal system (civil vs. common law), geographic/cultural identity (East vs. West) or even type of constitutional or systems, as Korea’s systems are hybrid
Id. at 354 (quoting the Amendment Proposal of the Administrative Litigation Act by the Ministry of Justice §51 (2012)) (translation by author). 515 Id. 516 Id. at 351. 514
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systems with strong theoretical and historical ties to Japan, Germany and the United States. If one looks at any of those groupings that Korea belongs to, it is clearly out of step with its peers in its failure to offer mandatory and comprehensive prohibitory injunctive relief within its administrative litigation system. 3.
Korea Has Considered but not Implemented Reform.
Notably, the foundational aspects of the Administrative Litigation Act of today was passed in 1984, a few years before Korea’s democratic constitution was negotiated and adopted. While types of actions available were clarified and classified in 1988, the suite of remedies available today still reflects predemocratic values. Such a gap is evidence of the concerns of a political elite who, as they have written and updated the ALA, clearly focused more on preserving the power and efficiency of the state against encroachments by the people than using the state as a means for defending the rights and liberties of the people.517 This deficit in Democratic Culture was not just an issue in 1984 or 1988. It is still an issue today despite the fact that Korean democratic and
This is consistent with Kyungpook National University Politics Professor Ben Thompson’s astute observation about constitutionalism in the United States versus that in Korea. He has noted that “the essential difference between the American constitution and the Korean constitution is that the American constitution was clearly written by people who do not trust government and the Korean one was written by a government that does not trust the people.” This concept plays out repeatedly in discourses about the proper role of the courts in both countries, as courts have become viewed more and more as the protectors of groups and individuals from the excesses of executive power and the possibility of majoritarian oppression emanating from legislative bodies.
517
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legal reformers have repeatedly tried to strengthen the ALA to reflect a broader commitment to contestatory democratic values with, inter alia, the statutory adoption of positive and negative injunctive relief. i.
Attempts at Remedial Reform.
The fight to improve the ALA has been going on for over twenty years. Progress has been slow – indeed, there has hardly been any progress since 1994. Sadly, administrative litigation reform proposals that were hot for debate in academic literature and in the halls of power in Seoul at the turn of the millennium are still waiting to be adopted. Despite many attempts to restart reform efforts, injunctive relief and other promising proposed reforms have not been introduced into the ALA. The most serious reform efforts were launched in 2002, 2006,518 and 2011.519 Each such effort attempted to make changes necessary to broaden ALA remedial measures, as well as other elements of the law (broadening rules of standing, additional forms of action, etc.). In 2002, the Supreme Court organized a special committee to consider amending the ALA. This committee was organized in response to criticisms in the 1990s about narrow interpretations of standing rules, issues with classification of actions and the lack of injunctive remedies needed to protect Kim, Byungki [김병기], Issues and Tasks in Reformation of Korean Administrative Litigation System [한국행정소송제도 개혁의 쟁점과 과제], 1 SOGANG J. L. & BUS. [법과기업연구] 153, 158 (2011) [hereinafter “Kim, Issues and Tasks”]. 519 Chung, supra note 513, at 352. 518
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the rights of the people.520 The committee sent its report with reform recommendations to the National Assembly in 2006. The report included recommendations to adopt prohibitory and mandatory injunctions and related procedural amendments. While the report discussed in the prior paragraph was sitting in the National Assembly, the Ministry of Justice had a committee meet to consider amendments to the ALA as well. This particular committee submitted its report to the National Assembly in April 2007.521 Such report proposed seven major recommendations, including the introduction of mandatory injunctions, robust preliminary injunctions and prohibitory injunctions. The National Assembly failed to move any ALA reform proposal and any momentum died at the end of the National Assembly’s 17th term in May 2008.522 In 2011, a committee of the National Assembly “comprehensively reviewed and analyzed all past amendment projects….”523 At about the same time, the Ministry of Justice also started pushing a reform effort. In May 2012, it completed an expanded proposal and actually held a public hearing. Things looked promising.524 The effort stalled out. From 2014 through the present,
Kim, Issues and Tasks, supra note 508, at 158. Id. 522 Id. at 159; see also Chung, supra note 513, at 351. 523 Id. at 352 (translation by author). 524 Indeed, the mood in favor of amendment was so strong that when the author started exploring this area of research in the spring of 2013, he was told to wait for amendments which would be coming out of the National Assembly at any time. The author is convinced that they did not make any significant improvement since that time so that this study could have a very clear basis for criticizing the ALA. 520 521
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only minor amendments have been made to the ALA, specifically in Articles 6 and 9 thereof.525 As of now, there continues to be a serious but mild interest in reforming the ALA brewing in the National Assembly. ii.
Objections to Remedial Reform.
Although some fairly significant efforts have been instigated by the Supreme Court and the Ministry of Justice, and carried forward within the National Assembly, all such efforts have failed. They have failed partly due to neglect, being eclipsed by bigger issues (like presidential politics and budgets526) and intellectual opposition to the idea of reforming the ALA’s remedial suite. Of the arguments that have been advanced against reforming ALA remedies to include injunctive measures, the three that have been most prominent are variations of arguments based upon conceptions of separation of powers housed in the Korean Constitution,527 theoretical restrictions that
See ALA, art. 6 (providing for public notice when the Supreme Court determines an order or regulation is in violation of the Constitution or Acts), 9 (providing clearer jurisdictional rules). 526 Kim, Issues and Tasks, supra note 508, at 159. 527 Id. at 160; see also Changsuk Kim [金昌錫], Effects of Introduction of Litigation of Obligation Fulfillment on Administrative Litigation [義務履行訴訟 導入의 行政訴訟에 대한 影響], JUSTICE [저스티스] 75, 90-1 (2003) (explaining theoretical issues involving mandatory injunctions and separation of powers); Ka-Young Yoon [윤가영], Prospect and Problems of Introduction of Litigation Obligation in Terms of Realization of Administrative Intervention Claim [행정개입청구권의 실현관점에서 바라본 의무이행소송, 그 도입의 전망과 문제점], 45 PUSAN NAT’L U. L. REV. [법학연구] 245, 257-60 (2004) (exploring theoretical issues with mandatory injunctions and separation of powers theories); Sang-Deok Lee [이상덕], A Review of Norm Control Litigation in the Code of Administrative Court Procedure in Germany – Focusing on Implications on the Discussion about Revisions to the Korean Administrative Litigation Act [독일 행정법원법에서의 규범통제소송 제도에 관한 고찰 – 우리 행정소송법 개정 논의에 주는 시사점을 중심으로], 32 ADMIN. L.J. [행정법연구] 113, 144 (2012) (introducing the separation of powers basis for objecting to reform). 525
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limit remedies to ex-post status,528 and that existing remedies are sufficient.529 Other objections have been raised as well, such as the fact that the legislative branch has not exercised its discretion to create the remedy530 – notably, this is simply a statement of fact but not a reason to object to new remedies. Another objection is that providing such remedies will impermissibly alter the jurisdiction of the courts over politics and administration531; however, this objection is tied into the separation of powers argument sufficiently so that it does not need separate treatment. Of the three major arguments, the last of these will be addressed before discussing the first and second below. (1) Are existing ALA remedies sufficient? To a substantial extent, the last of the three arguments has been addressed thoroughly on both theoretical and comparative bases. From a republican point of view, democratic contestation is a feature that is necessary to “establish that government does not dominate the contesting parties” by demonstrating that when the court finds fault with a public body it “supports the contestation and requires the public body to alter its decisions and perhaps
528 Chung, supra note 513, at 354 (highlighting an argument based on the language of Subsection 4, Section 19 of the German Constitution, which “anticipates an existing infringement of a right[ and] does not guarantee a judicial remedy against future infringement.”(translation by author)). 529 Chung, supra note 513, at 354 (noting that some critics of reform argue that “there is no practical need to seek injunctive remedial protection.” (translation by author)). 530 Kim, Issues and Tasks, supra note 508, at 160. 531 Id.
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provide some compensation.”532 While compensation is sometimes a useful remedy, the prime focus of Pettit’s theory is, and the major focus of administrative litigation should be, to ensure that public bodies behave according to their obligations under the constitution and ordinary laws. While remedies under the ALA, as it exists now, can coax behavioral changes from public agencies, the existing remedial options available to administrative litigation judges in Korea are not nearly as effective as injunctive remedies used in other leading democratic republics. Unlike current Korean remedies, injunctive remedies can directly force agencies to alter their behavior to comply with legal obligations and, as a result, clearly safeguard the people from arbitrary or otherwise oppressive actions. As mentioned elsewhere herein, equivalents to mandatory and prohibitive injunctive remedies have been implemented in Japan, Taiwan, Germany, England and the United States. Providing such remedies as an option gives their judges superior capacity to control the tendency of bureaucrats to abuse their power from time to time. As matters stand in Korea now, if a common citizen is having its legal or constitutional rights impinged by a public body due to action or inaction, the citizen has to wait until suffering injury before going to court to have the offensive action suspended temporarily and possibly declared void or otherwise remedied on an ex-post basis. No
532
Pettit, Republicanism, supra note 20, at 197.
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preliminary injunctions are permitted, even if it is clear that an agency has clearly signaled that it intends to engage in an illegal act that will cause substantial injury to a citizen. Even if an agency’s past illegal activity and resultant injury can be established as a precursor to future abuses, complainants cannot get an order from a court forcing an agency to alter its future behavior to vary from its past illegal behavior. The consequence of that serious remedial limitation is that Korean complainants have to repeatedly suffer and, if rich enough, engage in multiple suits to protect themselves rather than just being able to engage in one action for permanent injunctive relief. This absurdity wastes resources and undermines the democratic legitimacy of both the offending agency and the hapless court. Both public entities damage their democratic legitimacy because the former continues to oppressively dominate533 the injured claimant and the latter is incapable of meeting its obligation as a contestation forum to deliver a satisfactory remedy.534 In the wasteful scenario painted in the prior paragraph, there is at least a theoretical possibility that existing remedies can indirectly approximate permanent prohibitory injunctions. At least that is the contention, but such contention is hollow. For even if a party is successful in revocation litigation, the remedy is incomplete “because an administrative agency can undertake 533 534
Id. at 172-73. Id. at 197.
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the same disposition using a different reason” from the reason rejected in the revocation litigation.535 This method of operation allows agencies to bypass the spirit of the law by engaging in pretextualism as a basis for an otherwise illegal disposition. While the lack of prohibitory injunctive relief is insulting to the Korean people, positive actions taken by public bodies can at least be declared void on an ex-post basis. That is at least some consolation. With respect to omissions, the prospect for forcing agencies to comply with legal requirements is poor. The ALA does provide the people with the right to sue to “confirm the illegality of an omission by an administrative agency.”536 That is the end of it. The court only gets to declare that an omission is illegal. As bad as the situation can be in some revocation litigation scenarios, there is no scenario under current Korean law that provides for, or even approximates, mandatory injunctions (mandamus) or any reasonable remedy to protect a successful omission litigation claimant. Even if a court finds that an agency has illegally engaged in an omission, the agency can simply ignore the ruling and not make a disposition.537 The court has no right to force – to order – the agency actually to comply with the law and engage in the required dispositional behavior. While citizens of other leading democratic republics can seek an equivalent to a mandatory injunction Yoon, supra note 527, at 246 (translation by author). ALA, art. 4. 537 Yoon, supra note 527, at 246. 535 536
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to remedy omissions of public bodies, Korean citizens are left without any satisfactory response that can force agencies to act appropriately.538 The fundamental aspects of the democratic right of contestation are (1) that a contestatory forum will be able to neutrally and fairly hear the complaints of ordinary people against alleged arbitrary behavior of public bodies and (2) if arbitrariness is found, such contestatory forum will be able to force any offending public body before it to alter its behavior so that it is no longer arbitrary, oppressive and dominating. Korean courts clearly lack necessary remedial tools under the ALA to force compliance with constitutional and legal obligations with an eye towards the liberty of each citizen. Thus, it cannot be found to be properly implementing the democratic right of contestation in its administrative litigation courts. (2) Which separation of powers doctrine should be applied? The separation of powers theory is the most commonly cited reason for rejecting the implementation of robust administrative litigation tools, Using a hypothetical example, imagine for a moment that you are a landowner who wants to build a small store for your daughter to run. You go to the local authorities and fill out all required paperwork. Then the agency processing the paperwork does not reject it. It does not approve it. It does nothing. Without that paperwork being approved, you cannot build your building and your daughter cannot start her business. What do you do? You work your way up the bureaucracy, but no one processes the paperwork. Finally, you sue in the administrative court and you win. The remedy you receive is a declaration that the agency’s failure to process paperwork is an illegal omission. That is all. No one forces the agency to process the paperwork. To avoid embarrassment or another omission suit, they might do it. Would you feel like your rights have been upheld by this process? Of course not. The result is clearly out of line with what any free person in a democratic society would expect. Such an outcome is clearly not in line with Korea’s constitutional aspiration of liberty or the right to pursue happiness.
538
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particularly the distinct types of injunctive relief.539 Before getting too deeply into such objections, we will recall that, in generally understood terms, separation of powers can mean any one or more of the following: 1. Separation of function between different units of government[;] 2. Separation of personnel between different units of government[; and/or] 3. Checks and balances between different units of government.540 The first and second elements are intended to keep each branch of government separated so as to avoid concentration of power in a manner that would allow those with concentrated power to oppress the people. Typically, powers are primarily broken down into legislative, executive/administrative and judicial. Such powers are primarily vested in the branches that bear the names of such powers. The third separation of powers element listed above is meant to allow the separate branches of government to use some degree of shared authority over the primary domain of another branch to “check” the branch with primary authority over such area in order to ensure it uses such authority correctly – from a political, constitutional or legal sense, depending on which power is being checked. As in the United States but unlike England, Korea has no apparent issues with a clear separation of personnel between the different branches of government. Where the theoretical and practical issues arise in Korean 539 540
See, e.g., sources cited in note 517 above. Alder, supra note 206, at 173 (emphasis in the original).
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discourse generally, and with respect to administrative litigation remedies specifically, is in the determination of how strictly functions need to be separated between the different branches of government and, interrelatedly, to what extent checks and balances should be implemented to allow the branches to use shared authority over certain areas of functional competence to check each other. In this case, we are discussing two sides of the same coin, which is a question of how much power should be shared between branches of government. In 2004, Ka-Young Yoon categorized the basic separation of powers theories and their relation to whether mandatory injunctions should be permitted.541 The theoretical basis for dealing with mandatory injunctions also applies to prohibitory injunctions as well, although Yoon was not focused on such matters. In the next subchapter, the ex-post versus ex-ante theoretical elements will be tied together with separation of powers to distinguish preliminary injunctions from mandatory injunctions and, in the end, undermine some of the reasoning against mandatory injunctions found in this section. For now, the straight separation of powers theories, as categorized by Yoon, will be addressed: a. Passive Theory. The passive theory demands exactly what one would expect from its name: It implies a passive role for courts as a result of a strong
541
Yoon, supra note 527, at 257-60.
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division of powers and weak checks and balances in line with positivist and populist separation of power theories. The basic idea is that it is inappropriate for a court to order any action that interferes with an agency’s authority (or right) to decide. Under no circumstances should a court be allowed to interfere with an agency’s right to exercise its discretionary power by ordering it to act or not act. This theory also supports the concept that legislators considered injunctive relief as an option but opted to “use indirect enforcement measures such as waging a suit seeking confirmation of illegality of an omission.”542 The odd thing about this theory is that it respects the rights of administrative agencies more than it is concerned about enforcing the rights of the people or even just simply forcing administrative actors to act according to the law. In the end, the remedial powers of the court are so weak that it could be argued that they have no ability to force the state to provide a successful claimant with the practical realization of his or her rights. Thus, it appears to be completely out of line with aspirational goals of Article 10 of the Korean Constitution and ultimately undermines the purpose behind administrative litigation: providing relief to litigants from arbitrary actions or inactions of the state.
542
Id. at 258 (translation by author).
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More troubling is the knowledge that the indirect enforcement mechanism was adopted in lieu of a mandamus-like remedy due to political forces driving the legislative process in 1984,543 before Korea achieved a functioning democratic constitutional order. At that time, the Ministry of Justice proposed the introduction of the litigation for [a mandamus-like] order to do disposition, but the Supreme Court opposed to such an expansion of jurisdiction on the ground that it was too early for courts to exercise such an interventionary power to the administration.544 It is hard to ascribe democratic legitimacy to a choice made by pre-democratic judges to undermine remedial options that were needed to fully implement the democratic right of contestation. b. Active Theory. In direct contrast with the passive theory, the active theory argues that it is important to interpret separation of powers from a practical point of view. The emphasis of this “practical” theory is placed on protecting the rights of litigants whose rights have been infringed. Given that objective, “it perfectly complies with the principle of checks of the juridical branch on the administrative branch….”545 Ultimately, this theory does exactly what republican or liberal theorists would advocate: It puts the liberty and rights of the individual above the
Lee, Structures, supra note 427, at 50 n. 12. Id. 545 Yoon, supra note 527, at 258 (translation by author). 543 544
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interests of the administrative state. This fits perfectly with the republican purpose of checks and balances. When one organ of the state – a court – identifies actions by a second organ of the state – an administrative actor – that are arbitrary or otherwise oppressive, it is the duty of the first organ to, if at all legally possible, use its power to force the second organ to stop its dominating ways. c. Compromise Theory. This theory simply tries to narrow the scope of when injunctive relief would be available to a very narrow set of circumstances. This view would accept implementation of injunctive relief only when (1) disposition requirements are so clear that they do not require the administrative agency to make a preliminary decision; (2) the claimant is likely to suffer an unrecoverable loss; and (3) there are no other remedial measures available.546 What Yoon deems to be a theory is in this case really more of a plan for legislation which, like the passive theory, places the interests of the administrative agency above the individual. This is evident in that the court is not permitted at all to invade the agency’s decisional jurisdiction. This provides the narrowest of possible exceptions to a strict separation of powers. d. Separation Theory. This theory applies only to mandatory injunctions. It separates the litigation of obligation fulfillment – the proposed class of
546
Id. at 259.
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litigation that would lead a mandatory injunction to issue – into two categories: formative litigation and fulfillment litigation. Formative litigation would seek to get the court actually to exercise administrative power and directly make a disposition. Fulfillment litigation would seek to get the court to order the administrative agency to implement a disposition that benefits the claimant. This theory attempts to both respect the rights of the people to have relief and the authority of each administrative agency to make a disposition. Accordingly, formative litigation would be forbidden but fulfillment litigation would be permitted.547 This particular theory is a fairly reasonable compromise in the real world of legislative give-and-take in that it observes the competency of agencies to make dispositions while empowering courts to serve as guardians of the rights and liberties of the people. Despite Yoon’s careful categorization of key theories that have been used in Korea, Yoon focuses the theoretical discussion on whether the court is infringing on the administrative agency’s administrative jurisdiction. There is another factor, identified by Ha-Joong Chung in 2012, that needs to be considered: Chung wrote: For a constitutional country where an administrative act is subject to juridical control, the most decisive factor for the principle of separation of powers is whether the court can functionally make law, rather than whether or not the judgment of an administrative court infringes on administrative jurisdiction.548 547 548
Id. Chung, supra note 513, at 354 (translation by author).
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Chung contends that, in a modern constitutional country observing separation of powers, what Chung terms “making law” is wholly appropriate in order to implement needed remedies, whether ordering the revocation of an illegally burdensome administrative act, or ordering the actual execution of a beneficial administrative act that was illegally refused.549 The ultimate separation of powers question is this: How much authority should courts be able to exercise to force administrative agencies to comply with constitutional and statutory legal requirements? Depending on which conception of separation of powers one ascribes to, one will reach different conclusions. (3) Ex-post remedial objections linger on. (a)
Trailing Behind Germany.
Before analyzing the last objection to implementation of injunctive remedies through amendments to the ALA, it is important to note that the objections used in Korea today to object to courts acting as strong guardians of the liberty and rights of the people are the same arguments used by German legal positivists prior to and during World War II. The lack of real-world fortitude of such theories was proven during World War II in Germany and Austria, where courts simply focused on lawful control of administration under the then conception of Rechtsstaat – a very formalistic, thin version – 549
Id.
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rather than protecting the rights of the people.550 They only forced compliance with the law, no matter how amoral, immoral or evil the law, or actions taken by the state according to the law, might be. There is a reason why, in the post-World War II era, particularly after the Nuremberg Trials, legal positivists suddenly discovered natural rights and allowed them to have a place in what had been an amoral minefield of legal theory – German and Austrian positivism. Pre-World War II positivist constitutional theories proved to be absurdly removed from the need to have the state protect the people. After Allied occupation, Germany gave way to Anglo-American concepts of enumerated rights, substantive and procedural due process, and strong checks and balances in a strong separation of powers framework. Ultimately, Germany wholly altered the concept of Rechtsstaat to much more closely resemble a thick version of Anglo-American rule of law.551 As a result of its need to grapple with its troubling history and ongoing reality, Germany instituted a form of republican constitutionalism that, inter alia, mandates the state to safeguard rights of the people and, if the state fails to do so, the people are constitutionally guaranteed the ultimate right of
Dietmar von der Pfordten, On the Foundations of the Rule of Law and the Principle of the Legal State/Rechtsstaat, THE LEGAL DOCTRINES OF THE RULE OF LAW AND THE LEGAL STATE (RECHTSSTAAT) 15 (James R. Silkenat et al., eds., Springer International Publishing AG 2014). 551 Id. at 24 (noting that prior to World War II, “the Rechtsstaat was only understood formally, now it is also materially understood.”). 550
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contestation, the right to resist.552 Inclusion of such a right demonstrates how much the German state learned from its past and informs other jurisdictions of the need to view the state as a corruptible instrument that can and should be challenged, and even resisted by force if necessary to preserve the rights of the people. (b)
The Ex-Post Issue.
Ha-Joong Chung tells of anti-injunctive relief theory that militates for allowing only ex-post administrative litigation remedies from the prevailing and now antiquated pre-1960’s German perspective: The conclusion of such analysis is that mandatory injunctions should be permitted but prohibitory injunctions violate separation of powers due to their ex-ante restraint on administrative power.553 Chung’s outline for the negative implications of the separation of powers for prohibitory injunctions is also an argument against ex-ante remedies generally. According to Chung, this argument is a reiteration of the prevailing pre-1960 German view554 and it works like this: The principle of separation of powers is an organizing principle of government that mandates that legislators
GRUNDGESETZ [GG] [BASIC LAW], art. 20, translation at http://www.gesetze-iminternet.de/englisch_gg/index.html. (“All Germans shall have the right to resist any person seeking to abolish this constitutional order, if no other remedy is available.”). 553 Chung, supra note 513, at 353. 554 In 1960, Germany amended its administrative litigation law and by 1970, German courts had implemented injunctive-equivalent remedies thereunder. Id. at 354-55. Since that time, the theories discussed here have been largely discarded in Germany. However, they lived much longer lives with some Korean theorists. 552
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avoid conflict between powers by enacting laws that prohibit the domain of one power from expanding at the sacrifice of other powers in the government. Judicial control of public agencies before an agency acts “is beyond the boundary of juridical power.”555 Consequently, prohibitory injunctions, particularly preliminary injunctions, violate the principle of separation of powers as such remedies encroach on the rightful jurisdiction of administrative agencies, particularly when such remedies are used prior to the taking of an administrative action. Allowing prohibitory injunctions to issue against administrative agencies interferes with the rightful and authentic domain of the administrative state. The crux of the matter is that when an injunction issues from a court, such court has replaced the capacity of the impacted agency to decide with a decision of the court. This ex-ante decision substitution creates a substantial obstacle, if not an outright barrier, to such agency being able to perform its rightful duties in the future.556 Such a decisional substitution is deemed inappropriate and the court should have to wait until after the relevant administrative action has taken place before it can implement a remedy. Interestingly, under the old German viewpoint, as explained by Chung, a distinction is made between the permissibility of prohibitory injunctions and mandatory injunctions. Since prohibitory injunctions stop an agency from 555 556
Id. at 353 (translation by author). Id.
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acting before it has acted, it violates both (a) separation of powers as it improperly substitutes the court’s power over administration for the rightful power over administration that is vested in the impacted administrative agency; and (b) theoretical objections to ex-ante remedies. Neither of those violations occurs with mandatory injunctions, provided such injunctions are properly used to remedy either the failure of an agency to act at all – having committed what is termed an “omission” under Korean law. Since an omission that violates the rights of the people has taken place in the past, it is appropriate to apply a remedy that orders an agency to remedy such omission by actually performing a required administrative act.557 Accordingly, under the theory that only permits ex-post remedies, mandatory injunctions instituted to remedy omissions should be permitted.558 Ultimately, the arguments against adopting stronger administrative litigation remedies are questions of prioritization of norms. That prioritization should be determined by determining what the highest purposes of the Korean state should be. If we accept that implementing the democratic ideals of the Korean Constitution should be the ultimate objective of all state instruments, then the norms fall into a hierarchical lineup quite easily, as shall be explained below.
557 558
Id. Id.
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4.
The ALA Amendment Process Needs to Move Forward.
The Korean constitutional order supports stronger implementation of the democratic right of contestation by amending the ALA. Examples provided in other important constitutional systems should be studied and emulated. In particular, German constitutional and administrative theory and practice, which are so persuasively studied and followed in Korea, point the way for Korea to move forward by implementing a system of mandatory orders in administrative litigation. The need to protect the liberty and legal rights of the Korean people should serve as a basis for finally introducing positive and negative injunctive relief into the ALA. More importantly from a formalistic perspective, the Korean constitutional order militates in favor of amendment. If one is to ascribe to the idea stated in the Korean Constitution that it is a fundamental “duty of the [Korean] State to confirm and guarantee the fundamental and inviolable human rights of individuals”559, then the only debate should be about the scope of, and procedural rules needed to give the courts the power they need to protect – confirm and guarantee – the liberty interests and rights of the people. This includes not just higher level constitutional and fundamental rights but also the realization of more mundane legal rights that make the pursuit of happiness possible for so many. The Korean Constitution sets forth aspirations for liberty and duties to protect 559
대한민국헌법 [Constitution], art. 10 (S. Kor.)
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the rights of the people that are so clear there needs to be a revival of efforts to get the National Assembly to amend the ALA to strengthen the positive authority of the judiciary to minimize the negative impact that actions of the administrative state might have on the liberty interests and rights of the people. It is a constitutional imperative. Application of one of the theories identified by Yoon as separation theory or, better yet, the active theory560 would provide the opportunity for courts to check the administrative state in a manner that is close to meeting both republican ideals and Korean constitutional aspirations. Under either theory, the full slate of injunctive remedies, preliminary injunctions, permanent prohibitory injunctions and mandatory injunctions could be implemented. The only material issue is the question underlying the separation theory: Should courts be empowered to (1) actually take administrative actions themselves; (2) dictate administrators take a particular course of action or (3) order that the applicable administrative agency undertakes a disposition? That is ultimately a question of how much courts should be allowed to intrude on the discretionary authority of administrators. From a pure republican point of view, all three should be permitted. However, in order to abide by the fundamental premise of separation of powers and avoid over-empowering the courts, special procedural limitations would need to be implemented to
560
Yoon, supra note 527, at 258-59.
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prohibit courts from directly engaging in a disposition or ordering a particular disposition outcome unless there is convincing proof that the state is acting maliciously against the rights of the claimant, as constitutionally or statutorily protected. The Korean constitutional, administrative and legal systems, while influenced by Japan, as well as German, American and other Western influences, sit in a unique environment created by Korean political tradeoffs. Such tradeoffs have decided, and will continue to decide, how to implement Korea’s constitutional values and broader democratic norms in all aspects of public administration and law. Lest the author be accused of trying to propose the superimposition of an American or Western system of remedies on Korea, the author suggests starting with attempting to implement the proposed remedial reforms to the ALA in the first decade or so of this millennium.561 Such reform proposals were the result of Korean leaders working to get beyond a framework of conceptualism and idealism to the selection of litigation types and attendant remedies that would provide for practical realization of rights protection.562 In other words, they came up with Korean proposals that would help lead Korean legal reality into a more constitutionally viable future.
561 See Kim, Issues and Tasks, supra note 508, at 174-76 (discussing the Ministry of Justice and Supreme Court proposals for ALA amendments). 562 Id. at 183.
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Admittedly, the proposition for enhancing administrative litigation remedies in Korea is premised on the acceptance of constitutional values, as well as broader republican and liberal values that stand as a foundational premise behind them. Clearly, such values were accepted and stood as the driving factors behind reform studies done by the Ministry of Justice and the Supreme Court. The discussions within the bodies studying administrative litigation seriously discussed the introduction or preliminary injunctions, permanent prohibitory injunctions and mandatory injunctions.563 While it would be interesting to debate the differences between the minutiae of the studies, such as whether the Ministry of Justice’s proposal that there must be “reasonable doubt that a disposition or omission is illegal”564 in order to obtain a preliminary injunction, such detailed discussions would necessitate going beyond the scope of this study. So, it suffices to conclude that reasonable proposals for needed reforms exist and such reforms should be adopted in order to protect the liberty interests and fundamental rights of the people of Korea in a manner consistent with Korean constitutional values and related republican theoretical ideals necessary to implement the democratic right of contestation.
563 564
Id. at 176. Id. (citing Ministry of Justice proposal) (translation by author).
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Chapter 5.
Conclusion.
Most constitutional democratic republics have been built on an American model of republicanism. Such a model is premised on the notion that it is the purpose and duty of government to promote the liberty of the people and otherwise secure their rights in a manner that allows them to pursue their own happiness, as well as secure enumerated rights, without suffering under the hand of arbitrary and oppressive government actions. At the base of the American and Korean republics is the expression of ideals such as these found in the American Declaration of Independence and the Korean Constitution, respectively:
U.S. Declaration of Independence: We hold these truths to be selfevident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men….565
Korean Constitution: All citizens shall be assured of human worth and dignity and have the right to pursue happiness. It shall be the duty of the State to confirm and guarantee the fundamental and inviolable human rights of individuals.566
Notably, both statements and related constitutional doctrines of both countries support the notion that government has a fundamental duty to protect the rights and liberty of the people. Nowhere in either constitution does it state that it is the duty of the government to protect the rights of the administrative 565 566
Declaration of Independence, Preamble. 대한민국헌법 [Constitution], art. 10 (S. Kor.).
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state. The administrative state is a tool that is created to meet the objectives of governing – nothing more. To the extent that the administrative state, in exercising its authorities, impinges upon the liberty interests or fundamental rights of the people, it is the duty of other apparatus of state to rein in the offending uses of administrative tools. One of the key tools that has been developed to rein in the administrative state is the judiciary. It is that role of the judiciary that has been the focus of this study. Specifically, this study has focused on how administrative litigation implements can be used to implement the democratic right of contestation. This has been done from both a theoretical standpoint and with an eye towards actual concrete applications, as well as strengths and weaknesses that support proposals for reform in certain instances, within the United States and Korea. Ultimately, we see that for an administrative litigation system to be as effective as possible at upholding the democratic right of contestation, there must be both a strong democratic environment that supports such a system, as well as certain features that must be codified and implemented by the courts – the Implementing Criteria, in order for such a system to play its part as a forum of contestation that is empowered to confirm and guarantee the liberty and rights of the people. Key environmental features have been described and
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the effectiveness of the implementation of Implementing Criteria in the United States and Korea analyzed. While both the Korean and American systems are generally conducive to the implementation of the democratic right of contestation, they both have limitations that should be addressed. Heavy emphasis and analysis were done with respect to America’s need to reform or, preferably, abolish the deference doctrine from the Chevron and Brand X line of cases. For Korea, heavy emphasis was placed on the need to reform its administration litigation remedial scheme to include a full array of injunctive remedies. Both of these recommendations arise out of analyses that looked at both the Korean and American administrative litigation systems with respect to the four Implementing Criteria: Access, Judicial Independence, Procedural Fairness and Adequacy of Remedies. In connection with conducting an analysis of the Implementing Criteria, observations and recommendations were made beyond the major Chevron abolishment and introduction of injunction remedies recommendations. By no means are the recommendations contained in this study intended to be comprehensive in nature. Rather they are intended to demonstrate the types of recommendations that result from looking at administrative litigation systems from the perspective of the democratic right of contestation. In the future, it would be useful to conduct more in-depth studies into each of the
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Implementing Criteria in the United States, Korea and other leading democratic republics. As there continues to be an evolution of best administrative practices and legal implements used to hedge them in, using the democratic right of contestation, as well as this study’s framework for analyzing its implementation, as a point of criticism should continue to help bridge the gap that too often stands between political and legal theories and practical implementation of the ideals such theories support.
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민주적 주장권의 견지에서 본 행정소송: 비교 연구 퓨리만트로이
영남대학교 대학원
공법학과 헌 • 행정법학전공
지도교수 금태환 이진수
요약 이 연구는 대표적으로 공화주의 이론가 Philip Pettit 이 설명한 민주적 주장권을 (democratic right to contestation) 뒷받침하는 정치적, 민주적 이론과, 현대 민주주의 국가에서 행정소송의 역할과 기능에 대해 분석을 연결 및 발전시키려고 한다. 이 연구를 통해 민주적 주장권에 관한 공화주의 이론의 핵심 요소들을 구민주주의와 신민주주의, 동양과 서양의 문명, 불문법과 성문법 체계를 아우르는 현실의 행정소송체계의 기준점으로 삼는 것이 가능하다는 것을 제시할 것이다. 이러한 점은 특히 미국과 한국의 사법체계 분석과 관련된 이론적 검토를 바탕으로 제시될 것이다. 이 연구는 대표적으로 Pettit 과 Mattias Kumm 에 의해 설명된 공화주의적 의미에서 민주적 주장권의 이론적 측면과 현실 행정 소송을 연결 짓는다. 공화주의로부터 관련된 핵심 요소들을 선정한 후, 그 요소들을 ‘적용 표준’으로 정의하고 민주적 주장권이 행정 소송의 관점에서 적절하게 적용되었는지 판단할 기반으로 활용할 것이다.
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‘적용 표준’에 대한 전반적 분석을 마친 후, 이 연구는 미국과 한국의 행정 소송이 ‘적용 표준’에 어느 정도 부합하는지 살펴본다. 각 사법체계의 강점과 약점을 드러내면서도, 민주적 주장권에 모순되는 각 사법체계의 가장 큰 약점에 중점을 맞추려고 한다. 미국의 경우 그러한 약점은 허용될 수 없는 방식으로 청구인을 불리한 위치에 놓으며 행정국가의 억압적 행위를 견제할 수 있는 정당한 절차를 훼손하는 셰브런원칙(Chevron doctrine)이다. 한국의 경우 구제수단으로써 강력한 금지명령, 의무명령의 부족이 가장 큰 약점으로 볼 수 있다. 이러한 약점은 청구인이 승소한 때조차 민주적 주장권의 목적을 현실적으로 실현시키지 못하도록 한다. 이러한 약점들의 무게를 고려할 때, 이 연구는 (1) 미국의 경우 셰브런원칙을 폐지함으로써, (2) 한국의 경우 과거 제시된 개정안들에 따라 행정소송구제절차를 개편하는 방법을 통해 약점들을 수정해 나갈 것을 제시한다.
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