Daniel R. Ortiz

Comparative positive political theory and empirics: Second Edition

No theoretical approach to American administrative law over the past 50 years has been as influential as Positive Political Theory (PPT). In its view, the private and institutional incentives of legislators, administrators, judges, and the executive largely determine administrative law on the ground. Its advocates have offered provocative and refreshingly cynical accounts of many of the discipline’s practices and doctrines, including its most central ones. Comparative administrative lawyers have now begun to apply PPT more broadly to explain differences among different jurisdictions’ administrative law regimes. This article seeks to test PPT by asking how well it explains one central doctrine in most administrative law systems: judicial review of agency discretion. PPT would predict that judicial review would become more searching the more divided a particular political system is. A presidential system like the US’s, for example, would apply much stricter review than a parliamentary system like the UK’s. The article looks at four different systems—those of the US, the UK, France, and Germany - to test whether this prediction holds. The article considers the formal doctrine in each system, commentators’ views on each system, and empirical evidence, where available, and concludes that PPT by itself does not well explain law on the ground. It also argues that some of PPT’s most prominent advocates have recognized this weakness and complicated the theory in a way that allows it to better explain how administrative law operates while causing the theory to lose much of its distinctiveness and interest.

Comparative Positive Political Theory

Positive political theory (PPT) explanations of the U.S. administrative state and administrative law emphasize the political incentives created by U.S.-style separation of powers, which separates political power between Congress and an independently elected President. Among other claims, PPT explains judicial review of administrative action in the U.S. as a way for Congress to assert control over a political rival, the President, and agencies that are able to exploit the policy space made available to them by the many veto points that exist in the U.S. Presidential system. This paper begins the task of testing the predictions of PPT by looking at judicial review of administrative action in countries with quite different constitutional designs. PPT, for instance, would predict that judicial review of administrative action would look quite different in a Parliamentary system like the U.K. After examining judicial review of administrative action in the U.K., France, and Germany, this paper argues that PPT’s predictions are not validated. The analysis - which is admittedly preliminary - suggests that alternative explanations, such as judicial culture, may better explain the shape of judicial review of administrative action in the U.S.