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Rubinstein Reiss, Dorit --- "Administrative Agencies as Creators of Administrative Law Norms: Evidence from the UK, France and Sweden" [2010] ELECD 824; in Rose-Ackerman, Susan; Lindseth, L. Peter (eds), "Comparative Administrative Law" (Edward Elgar Publishing, 2010)

Book Title: Comparative Administrative Law

Editor(s): Rose-Ackerman, Susan; Lindseth, L. Peter

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848446359

Section: Chapter 22

Section Title: Administrative Agencies as Creators of Administrative Law Norms: Evidence from the UK, France and Sweden

Author(s): Rubinstein Reiss, Dorit

Number of pages: 14

Extract:

22 Administrative agencies as creators of
administrative law norms: evidence from the UK,
France and Sweden
Dorit Rubinstein Reiss


Administrative agencies are central sources of administrative law norms. Agencies are
not just the recipients of legal norms; they are also important, sophisticated actors
that create norms that are later accepted and adopted by other actors. To illustrate
this claim, this chapter focuses on an important comparative case: the development of
norms of transparency and consultation by the agencies regulating telecommunications
and electricity in England, France and Sweden.1 These norms bear some resemblance
to notice and comment rulemaking procedures under the United States' Administrative
Procedures Act,2 but with a national flavor that supports Dominique Custos's discussion
of Americanization in Chapter 17 of this volume.

1. Theoretical background
The copious literature on administrative procedures and their effects generally treats
agencies as subject to procedures, that is, as recipients and not actors in setting the
administrative law norms that apply to them (e.g. Galligan 1996, Lubbers 2008). Political
scientists make the same assumption: they treat procedures as something imposed on
agencies, not something agencies help to develop (e.g. McCubbins et al. 1987, Moe 1989,
Majone 1999, Spence 1999).
American studies that treat agencies as independent actors in relation to their regulatory
framework tend to focus on agencies' violations of administrative law norms, (Halliday
2004, Hickman 2007, Noah 2008) or on choices between preexisting frameworks ­ for
example, choosing between rulemaking and adjudication (Citron 2008).
In contrast, public administration scholars ...