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Sovereignty's PromiseThe State as Fiduciary$
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Evan Fox-Decent

Print publication date: 2011

Print ISBN-13: 9780199698318

Published to Oxford Scholarship Online: January 2012

DOI: 10.1093/acprof:oso/9780199698318.001.0001

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Administrative Law as Solicitude—Reasonable Decision-Making

Administrative Law as Solicitude—Reasonable Decision-Making

Chapter:
(p.202) VIII Administrative Law as Solicitude—Reasonable Decision-Making
Source:
Sovereignty's Promise
Author(s):

Evan Fox-Decent

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199698318.003.0009

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

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