Administrative Law as Solicitude—Reasonable Decision-Making

Evan Fox-Decent

in Sovereignty's Promise

Published in print December 2011 | ISBN: 9780199698318
Published online January 2012 | e-ISBN: 9780191732171 | DOI:

Series: Oxford Constitutional Theory

Administrative Law as Solicitude—Reasonable Decision-Making

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In this chapter I claim that the fiduciary model answers a difficult question that arises in hard cases of administrative law in which an individual is subject to a drastic exercise of public power: if the individual has no pre-existing right to the vulnerable interest at stake (such as an interest in continued residence in a state in which she is not a citizen), why should the vulnerable interest figure at all in the balance when a decision-maker is called on to interpret and apply a statutory power? Under the fiduciary theory, the vulnerable interest must figure in the balance because fiduciaries owe solicitude to the people subject to their power. The chapter works out some of the details of this conception of administrative law, and relates them to evolving public law doctrines of judicial deference, review of agency interpretations of law, and review of discretion.

Keywords: judicial review; common law constitutionalism; statutory interpretation; review of discretion; deference; solicitude; rule of law

Chapter.  15483 words. 

Subjects: Constitutional and Administrative Law

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