Studying Law at RomaTre

Academic Year 2018-2019

Spring Semester (March 1 - May 31, 2019)

Course

Comparative Administrative Law

Prof. Giulio Napolitano

7 CFUs - ECTS

1. Objectives
The course provides an introduction to the study of comparative administrative law for both theoretical and practical purposes. On the one side, the course offers an intellectual framework to better understand the role of government and the different regulatory techniques existing in various jurisdictions, at national and supranational level. On the other side, the course prepares future lawyers and consultants to provide advice to companies and to individuals on investment, business and policy-making decisions, in relation to the different legal and administrative framework of each jurisdiction. The course is highly recommended to Erasmus and foreign students too.


2. Programme
The Course consists of lectures (section I) and case law discussions (section II-V), meant to encourage active students’ participation. Each case will be examined in the context of its specific jurisdiction and through comparative overview. Students’ evaluation will be based on class work, oral presentations and comments, and a final paper. Academic papers, cases and materials will be made available in class and on the website.

The Course is divided into five sections:
I. General overview of the most important systems of administrative law around the world.
II. The role of government, public powers and human rights.
III. Delegation, expertise and contracting out.
IV. The regulation of administrative action. Cost-benefit analysis, administrative procedures and transparency.
V. Judicial review and administrative litigation.

Class style:
Lectures (Section I)  and cases discussion (Sections II, III, IV, V).
Professors Thomas Perroud (University of Paris, Panthéon-Assas) and Maria Adele Carrai (Harvard University Asia Center) will join professor Napolitano in lectures and cases discussions.

3. Prerequisites
This course is part of the program "Studying Law at Roma Tre," thus, attendance is required. Students who want to attend this course must complete a pre-registration form to enroll. The application deadline is 18 February.  The mandatory English test will take place on 22 February 2019.
For further information click here:
http://host.uniroma3.it/laboratori/piazzatelematica/STUDYINGLAW/nuovostudente.asp .

4. Schedule and calendar
Classes will take place in Room 3.
Monday, Tuesday and Wednesday: 17.45-19.30
From 04.03.2019 to 21.05.2019
Class attendance is very important. In case of clashes with other classes of Studying Law at Roma Tre, students are allowed to alternate their presence in the overlapping day.
The classes will be held according to the following calendar.

Section I. The great systems of administrative law
 
  1. History, methods and problems of legal comparison in administrative law           (04.03.19).
  2. The rise and transformation of administrative law in Europe (05.03.19)
  3. The US model of administrative law and its global influence (06.019)
  4. The worldwide diffusion of administrative law: insights from South America, Africa and East Asia. (11.03.19) 

Section II. The role of government, public powers and duties, and human rights
 
  1. Sovereignty, security, and solidarity in managing aliens’ entry and migrants fluxes/1 [The suspension of aliens’ entry on national security grounds in the United States: Supreme Court of the United States, 26 June 2018, Trump, President of the United States, et al. v. Hawaii et al., no. 17-965, 585 U.S._(2018) - Security protection and war on terror: the recognition and revocation of the refugee status in Germany. Federal Administrative Court of Germany, 7 July 2011, 10 C 26.10)]. (12.03.19)
  2. Sovereignty, security, and solidarity in managing aliens’ entry and migrants fluxes/2 (Migrant camps in France and public duties to provide minimum living standard. Council of State of France, 23 November 2015, No. 394540 and 394568, Interior Ministry and Calais Municipality vs. Médecins du Monde and Secours Catholique – Caritas France. – Comparative analysis and overview) (13.03.19)
  3.  Welfare State or Market System? Different Approaches to Health Care Protection/1 (The U.S. health care reform: the individual mandate and the Medicaid Expansion (Supreme Court of the United States, 28 June 2012, National Federation of Independent Business v. Sebelius). - Again on the U.S. health care reform: tax credit and federally run exchange (Supreme Court of the United States, 25 June 2015, King v. Burwell) (18.03.19)
  4. Welfare State or Market System? Different Approaches to Health Care Protection/2 [Compulsion and choice in the German health insurance system. Federal Constitutional Court of Germany, First Senate, 10 June 2009, BvR 706/08 - Comparative analysis and overview]. (19.03.19)
  5.  Access to water and natural resources and governmental duties/1 [The right to water of indigenous communities in Botswana and the government’s duty to refrain from inflicting degrading treatment  (Court of Appeal of the Republic of Botswana, 27 January 2011, No. CACLB-074-10, Mosetlhanyane and others v. Attorney General of Botswana) -  Distribution of water by private companies and public service obligations in France (Constitutional Council of France, 29 May 2015, Société Saur Sas). (20.03.19)
  6. Access to water and natural resources and governmental duties/2 The right to a clean and healthy environment and the protection of natural resources in Uganda (High Court of Uganda, 13 July 2005, no. 100/2004 Advocates Coalition for Development and Environment and others v. Attorney General and National Environment Authority)- Comparative analysis and overview] (25.03.19)

Section III. Delegation, expertise and contracting out
  1. Delegated Rulemaking and Separation of Powers [Misuse of Drugs Regulation In Ireland:Is Delegation to Government’s Orders Constitutional? Supreme Court of Ireland, 22 June 2016, [2016] IESC 34, Bederev v. Ireland. - The delegation of regulatory powers to public-private corporations in the US railroad system Supreme Court of the United States, 9 March 2015, Department of Transportation, et al., petitioners v. Association of American Railroads, 575 U.S. (2015); Court of Appeals for the District of Columbia Circuit, 29 April 2016, Department of Transportation, et al., petitioners v. Association of American Railroads, 29 U.S. (2016) - Comparative analysis and overview (26.03.19)
  2. Delegation to Independent Agencies/1. - The mandate of the European Central Bank in the judicial dialogue between the Federal Constitutional Court of Germany and the European Court of Justice Federal Constitutional Court of Germany, 14 January 2014, no. 2 BvR 2728/13; European Court of Justice, Grand Chamber, 16 June 2015, Case C‑62/14, Peter Gauweiler and others vs. Deutscher Bundestag - A new standard for delegation of powers to EU agencies: The European Securities and Markets Authority and the short selling regulation European Court of Justice, Grand Chamber, 22 January 2014, Case C‑270/12 United Kingdom of Great Britain and Northern Ireland (Esma-short selling case) (27.03.19)
  3.  Delegation to Independent Agencies/2. The establishment of the National Communications Commission in Taiwan: is delegation to independent authorities constitutional? Constitutional Court of Taiwan, 21 July 2007, J.Y Interpretation no. 613 – Comparative analysis and overview (01.04.19)
  4. Contracting Out and Privatization/1 The sub-delegation of licensing discretionary powers to the aquaculture industry in Canada Federal Court of Canada (Ottawa, Ontario), 6 May 2015, 2015 FC 575 Morton v. Canada (Fisheries and Oceans) - The privatization of prisons in Israel The Supreme Court of Israel sitting as the High Court of Justice 19 November 2009, HCJ 2605/05, Academic Center of Law and Business and others v. Ministries of Finance and Public Security, A.L.A. Management and Operation (2005) Ltd, and Knesset. (02.04.19)
  5. Contracting Out and Privatization/2 [Contracting out and public procurement: the supply of meals to patients and staff in a Portuguese public hospital Court of Justice of the European Union, (Fifth Chamber), 19 June 2014, C-574/12 Centro Hospitalar de Setúbal EPE and Serviço de Utilização Comum dos Hospitais (SUCH) vs. Eurest (Portugal) - Sociedade Europeia de Restaurantes Lda. Comparative analysis and overview (03.04.19)

Section IV. Cost-benefit analysis, administrative procedures and transparency
  1.  Rational Decision-Making: Cost-Benefit Analysis and Impact Assessment [Taking costs (more) seriously. The role of cost-benefit analysis in environmental regulation in the United States. Supreme Court of the United States, 29 June 2015, Michigan et al. v. Environmental Protection Agency et al., 576 U.S. (2015) - Impact study, costs assessment and the precautionary principle: the declaration of public utility of works required for the realization of a high-tension line in France (Council of State of France, 22 March-12 April 2013, Nos. 342409 and others, Association Coordination Interregional Stop THT and others - Comparative analysis and overview] (08.04.19)
  2. Public Participation in Administrative Procedures/1 The right of participation in large infrastructures projects:  the World Bank and the Mumbai Urban Transport Project in India World Bank Inspection Panel, Investigation Report, India: Mumbai Urban Transport Project (IBRD Loan No. 4665-IN; IDA Credit No. 3662-IN), 21 December 2005 - Citizens’ participation in environmental impact assessment in Chile Supreme Court of Chile, 17 March 2017, No. 55.203-2016, Mina Invierno (09.04.19)
  3. Public Participation in Administrative Procedures/2 [Notice-and-comment in rulemaking: the problem of interpretative rules in the US Administrative Procedure Act Supreme Court of the United States, 9 March 2015, no. 13-1041 and 13-1052, Perez v. Mortgage Bankers Association, 575 U.S. (2015).Comparative analysis and overview (10.04.19)
  4. Governmental Transparency and Access to Public Information [Electronic request of information and duty to reply within the time limit under the Open Government Information Regulations in China Yuexiu District People’s Court of Guangzhou Municipality, People’s Republic of China, 24 August 2011, Yue Fa Xing Chu Zi No. 252 Administrative Judgment. Supreme People’s Court Guiding Case No. 26 (“GC26”) -  The right of access to public information in United Kingdom and the vexatious request’s exemption England and Wales Court of Appeal, 14 May 2015, [2015] EWCA Civ 454, Case No: C3/2013/1855 & C3/2013/1901, Dransfield v. The Information Commissioner, Devon County Council; Craven v. The Information Commissioner, The Department for Energy and Climate Change   Comparative analysis and overview ] (15.04.19)

Section V. Judicial review and administrative litigation
  1.  Lecture “Sovereignty, Government and Judicial review in China” (Maria Adele Carrai’s Lecture) (06.05.19)
  2. Judicial Review, Fair Trial and Due Process/1 [The Council of State and the administrative loop: a Belgian tale on administrative and judicial efficiency vs. right of defense. Constitutional Court of the Kingdom of Belgium,  16 July 2015, n. 103/2015, H.B. and Others - The extension of judicial review to private bodies exercising a public function. Checking the legitimacy of the public reprimand issued by the front-line regulator of stock exchange in Singapore. High Court of Singapore, 9 May 2012, SGHC 103/2012 Yeap Wai Kong v. Singapore Exchange Securities Trading Ltd. (07.05.19)
  3. Administrative sanctions in the Italian financial market in the light of the European right to fair trial and full jurisdiction ECtHR 4 March 2014, application nos. 18640/10, 18647/10, 18663/10, 18668/10 and 18698/10, Grande Stevens and others vs. Italy - Comparative analysis and  overview. (08.05.19)
  4.  The standard of review: deference, reasonableness and proportionality/1 Fixing the boundaries of agencies’ regulatory authority. The many dimensions of ‘Chevron’ deference in the United States. Supreme Court of the United States, 20 May 2013,  City of Arlington, Texas, et al. v. Federal Communications Commission et al., 569 U.S. (2013), Docket No. 11-1545 - The dismissal of a public employee in Canada. Judicial review under the correctness and reasonableness standards. Supreme Court of Canada, 3 March 2008, Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9] (13.05.19)
  5. The standard of review: deference, reasonableness and proportionality/2. The ban on tobacco vending machine in UK in the light of the principle of proportionality. Court of Appeals of England and Wales, 17 June 2011, [2011] EWCA Civ 437 Case No: C1/2011/0123 & C1/2010/2978. Sinclair Collis Limited and National Association of Cigarette Machine Operators v. Secretary of State for Health - Comparative analysis and overview (14.05.19)
  6. Public contracts litigation/1 [Third parties’ remedies challenging the validity of administrative contracts: lessons from France, Council of State of France, 4 April 2014, No. 358994, Bonhomme vs. Department of Tarn-et-Garonne - State liability in public procurement in Austria: from subjective to objective liability, Court of Justice of the European Union, 30 September 2010, Case C-314/09, Stadt Graz v. Strabag AG and Others ] (15.05.19)
  7. Public contracts litigation/2 [Arbitration in public procurement in South Africa: Towards an “administrativization” of remedies? North Gauteng High Court of Pretoria, 30 March 2012,  ZTE Mzanzi (Pty) Ltd v Telkom SA Ltd and Others (72499/2011) Supreme Court of Appeal of South Africa, 18 March 2013 Telkom vs. Mazanzi & Others (383/2012) [2013] ZASCA 14 / South Gauteng High Court of Johannesburg, 31 March 2011, No 2009/27042, ISO Leisure OR Tambo (Pty) v Airports Company SA Ltd  and others,  [2011(4) SA 642 (GSJ)] – Comparative analysis and overview (20.05.19)
  8.  Final Lecture: The Future of Comparative Administrative Law (21.05.19)

For any further information and change, please check in advance on the Department Website.



5. Exam
5.1. Assignments
The materials will be downloaded through the Elearning platform before the beginning of the course. Students are required to read the cases and to engage in class discussion. Groups of students could be formed in order to defend the different positions of litigants.

5.2. Final Exam (only for enrolled students)
Students have to submit a paper of 4.000 words on a topic of comparative administrative law previously agreed with the professor. Papers must be sent at least seven days before the day of the exam in order to receive suggestions and corrections. In the oral exam, students will present and discuss the paper with the professor.

5.3. Grading components
  1. Active participation in class discussion 50%
  2. Final exam 50%

For any further requests, please write to amministrativo.napolitano@gmail.com (object: CAL exam_surname).


6. Course book and other suggested readings
6.1 Suggested preliminary readings
Bignami, Francesca. "Comparative Administrative Law." The Cambridge Companion to Comparative Law (2012): 145-170.
Boughey, Janina. "Administrative Law: The Next Frontier for Comparative Law." International and Comparative Law Quarterly 62.01 (2013): 55-95.
Napolitano, Giulio, “The Transformations of Comparative Administrative Law.” Rivista trimestrale di diritto pubblico (2017): 997-1003

6.2 Required reading for the class discussion
Napolitano, Giulio, “Comparative Administrative Law. Cases and Problems.” (2019).

6.3 Additional reading
Rose-Ackerman, Susan, Peter L. Lindseth, and Blake Emerson (editors), “Comparative Administrative Law”, Cheltenham, Edward Elgar, second edition, 2017.

The preliminary and the required readings will be available on the platform Elearning (see “Canali di comunicazione elettronica di Dipartimento”, chapter I, par. 7).


7. Contacts
For further information contact amministrativo.napolitano@gmail.com.
For any clarification and help, the professor’s assistants are available at the beginning and at the end of the lessons.


8. Exam dates
Exams will be held in the following dates:

Summer term
I II III
10 June, 1.00 p.m. 24 June, 1.00 p.m. 15 July, 1.00 p.m.

Autumn term
I II
2 September, 1.00 p.m. 30 September, 1.00 p.m.




 

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