Jerry L. Mashaw · November 2007
76 GEO. WASH. L. REV. 99 (2007)
The right to be heard and to have decisions on one’s interests made fairly and impartially are embodied in the Due Process Clauses of the U.S. Constitution and in a wide range of statutes, including the Administrative Procedure Act (“APA”). The right of access to government information is guaranteed by the Freedom of Information Act. In addition, the rights to petition administrative institutions, to receive responses to those petitions, and to obtain reasons for administrative decisions are guaranteed both by the APA and numerous judicial determinations. The right to compensation for damage caused by administrative officials is defined largely by American common law, whereas the government’s liability for damages is structured by statutes such as the Tucker Act and the Federal Tort Claims Act.
Nevertheless, when pursuing any of these principles in more detail, one would find some significant differences in U.S. and E.U. practices. Although richly embellished by judicial interpretations, American lawyers can generally point to a text: the U.S. Constitution, the APA, or some more specific statute as the source of a particular right to good administration. In the European Union, the treaty articulating a number of these rights remains to be ratified, and that ratification effort may stall indefinitely. “Good administration” is, up to now, often a function of judicial decisions and agency codes of behavior. Access to information in the Freedom of Information Act is a general right to most government documents, not, as in the European Union, just those relating to a person seeking access to his or her own file. Moreover, the exceptions to the Freedom of Information Act are spelled out in great detail and backed by an expedited enforcement procedure. On the other hand, a right to damages for official misconduct, error, or nonfeasance begins in the United States from a premise of governmental immunity. Compensation is permitted only to the extent that statutes specifically waive the government’s immunity from suit.
Exploring the many similarities and differences in the “right to good administration” in the European Union and the United States is the task of many books, not the task of one essay. This Article focuses, therefore, on the right to reasons and the practice of administrative reason giving. This is a common and important feature of both E.U. and U.S. administrative law and, I will argue, a somewhat undertheorized one. This Article therefore seeks to explain why reason giving is so prominent a part of both administrative systems, how it functions juridically, and, most crucially, what the reasons are for demanding reasons or for providing a “right” to reasoned administration. In the course of that exploration, I hope to show that the reasons most commonly advanced for reason giving in both the E.U. and the U.S. systems tend to ignore reason giving’s most fundamental function—the creation of authentic democratic governance.
