Should state administrators be required to perform assessments of potential violations of the Fif... more Should state administrators be required to perform assessments of potential violations of the Fifth Amendment before issuing a new regulation or applying an existing one? Should state regulations be confined to protection of public health and safety only and exclude other public interest goals for the "general welfare?" Should local governments be required to perform impact assessments of takings according to the state attorney general's mandated guidelines prior to taking a regulatory action? If as a result of the lawful application of a state regulation, a business person's property experiences a 25 percent decline in value, should the state agency that issued the regulation be required to pay for the amount of the decrease out of its budget? These and other questions are being answered in the affirmative by provisions in new laws governing state and local regulation being considered and passed by state legislatures across the country. The rise of the regulatory state, conflicts over land use and environmental regulation, political organizing by property rights groups, and federal judicial pronouncements have all sparked an explosion of state legislative initiatives concerning regulatory takings. Recent federal judicial decisions have set out an emerging, albeit somewhat muddled doctrine of regulatory takings that directly impacts a wide range of federal, state, and local regulatory activities. The doctrine states that under certain circumstances, many normal regulatory activities can be judged to have violated the Fifth Amendment's prescription that private property may not be "taken for public use without just compensation." Compensation can be required by the courts, even though the regulation leaves legal ownership in the hands of the private individual. These pronouncements coupled with concerted lobbying activities by property rights advocates across the country have led to a spate of new state statutes that in some cases embrace, and in others, extend requirements placed on regulators. These measures could portend complicating, if not extremely costly consequences for the exercise of government regulation, depending on the approach a state takes. In this article we provide a preliminary overview and analysis of the state property rights legislation enacted to date. We describe the extent and nature of these new statutes, explain and critique the major types of measures being adopted, and conclude with a discussion of the key issues raised by these acts and their implications for public administration. Federal Jurisprudence on Regulatory Takings One of the intentions of most of the new state statutes concerning property rights is to codify elements of the newly developing takings doctrine. A brief review, then, of the key Supreme Court rulings on regulatory takings is in order before moving on to the legislative approaches themselves. Since 1922, the U.S. Supreme Court has recognized the possibility that a regulation, as opposed to outright confiscation, could be judged a taking without just compensation (Pennsylvania Coal v. Mahon, 260 U.S., 1992). However, federal courts seldom invoked the "regulatory takings" doctrine or sided with private property owners against state interests until the 1980s. In the last 15 years, the takings doctrine has been elaborated, and property owners have begun to win more regulatory takings suits against state and local regulators in federal and state courts. The Supreme Court's preferred approach to assessing regulatory takings claims is for trial judges to conduct an ad hoc balancing of the "legitimate state interest" at stake with the burden placed on the property owner affected by the governmental action. The Court has preferred (but not always insisted) that courts assess each regulation as it is actually applied to a particular piece of property to determine if a taking has occurred rather than to assess the regulation when issued. …
Page 1. The Consolidation of Democracy in Ukraine . . CHARLES R. WISE and TREVOR L. BROWN This ar... more Page 1. The Consolidation of Democracy in Ukraine . . CHARLES R. WISE and TREVOR L. BROWN This article analyses the process of democratic consolai ali Ол in Ukraine. "Nie ultimate a tabi lit v of democracy lias 10 do ...
& Stepan argue that elite consensus on the distribution of power among political institutions is ... more & Stepan argue that elite consensus on the distribution of power among political institutions is a critical factor for democratic stability in nations in transition 1. According to Linz & Stepan, Disagreements among the core actors of transition over the type of government and electoral system may create questions about the legitimacy of the emerging democratic government, the decision-making process, and the future of the political system. Such institutional indeterminacy about core procedures necessary for producing democracy may not only leave the transition incomplete, but also postpone any consolidation of democracy. 2
In several key rulings since the mid-1980s, the U.S. Supreme Court has begun to reshape the conto... more In several key rulings since the mid-1980s, the U.S. Supreme Court has begun to reshape the contours of regulatory takings. The emerging doctrine appears to reaffirm private rights in property, narrow the reach of governmental regulation, and extend the scope of judicial review. Despite their "muddled" transitional nature, these developments in the regulatory takings arena are sending a clear signal to public administrators to attend more carefully to the effects of their regulatory actions on private property rights. The purpose of this article is to analyze the key issues currently at play and point to some of the potential implications for the field of public administration.
could have chosen othernise. They could have-and in some ways did-act out of something other than... more could have chosen othernise. They could have-and in some ways did-act out of something other than self-interest. To see the document as an expression of logic is both to let the framers off the hook and to sell them short. As Friedrich Nietzsche once observed: When the inquirer, having pushed to the circumference, realizes how logic in that place curls about itself and bites its own tail, he is struck with a new kind of perception: a tragic perception, which requires, to make it tolerable, the remedy of art (1956, p. 59). Storing's assessment makes a further observation that Spicer and Terry mention but should have explored more deeply: that the most fundamental problem with the founding arguments is that they put too much emphasis on individual rights, thereby "cutting each man off from his fellows and from God" (1979, p. 232). He suggests that making individual rights to life, liberty, and pursuit of happiness the preeminent moral rule leaves a "large opening toward slavery" by making the rights of others prudential constraints instead of moral ones. Storing argues that the founders tended to reduce justice to self-preservation, self-preservation to self-interest, and self-interest to "what is convenient and achievable" (1979, 226). Spicer and Terry have fallen into a similar trap, equating legitimacy with logic, and logic with self-interest. In so doing, they have obscured the deepest concer raised by their essay: the extent to which it is possible for politicians (including administrators) to "live in truth" (Ash, 1990; Havel, 1986)-that is, to attain moral excellence. As Vaclav Havel has reminded us, the greatest threat to human freedom is not the classic dictator but the phenomenon of impersonal power: power that is rooted in apparently neutral and objective logic. If so, then the responsibility facing public administrators today is to counterpose impersonal power with personal responsibility, conscience, and a politics growing from the heart rather than from a thesis. Havel urges us to renounce the vision of a rationally calculable and technologically achievable "welfare" in favor of "practical morality,...service to the truth, [and] essentially human and humanly measured care for our fellow humans" (Havel, 1986, p. 155). Havel's words warn public administrators of the risks attached to a practice that grounds itself in "pure" rationality. It may be the case that the terms of public life (indeed, life itself) ensure that the vast majority of us will live in half-truth. But we should not delude ourselves that we can eliminate the question of truth altogether. Nor should we want to.
Public services in many states have been placed under federal court supervision. In our 1991 PAR ... more Public services in many states have been placed under federal court supervision. In our 1991 PAR article, we examined the implications of the federal judicial decisions in supervising the Kansas City Metropolitan School District for the “new triumviate” governing public services—public officials, legislators, and judges. In this article, we examine judicial decisions affecting the same school district a decade later to reveal the impact of judicial supervision on the school district and to discern the implications for policy termination. We find that, once begun, judicially mandated federal court supervision of public institutions is not readily terminated, even pursuant to the wishes of the United States Supreme Court.
Public reporting burder for this collection of information is estibated to average 1 hour per res... more Public reporting burder for this collection of information is estibated to average 1 hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing this collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burder to Department of Defense, Washington Headquarters Services, Directorate for Information Operations and Reports (0704-0188), 1215 Jefferson Davis Highway, Suite 1204, Arlington, VA 22202-4302. Respondents should be aware that notwithstanding any other provision of law, no person shall be subject to any penalty for failing to comply with a collection of information if it does not display a currently valid OMB control number.
The 2000 presidential election exposed serious election‐administration deficiencies that affected... more The 2000 presidential election exposed serious election‐administration deficiencies that affected the presidential election and the confidence of the American people in the way elections are administered. The ensuing controversies also exposed significant issues in judicial—administrative relations. This article examines the factors involved not only in Florida, but also in the nation, and discusses lessons for the future of election administration and for public administration generally.
There is a primary debate, as yet unresolved, regarding the superiority of presidential or parlia... more There is a primary debate, as yet unresolved, regarding the superiority of presidential or parliamentary regime types for the stability of democratic government. Because qualitative and quantitative analyses have yet to demonstrate definitively whether one regime type is inherently more stable than the other, researchers have branched out in a number of directions. One prominent stream of research examines the role that key intervening factors have in determining regime stability, including the electoral system, federalism, and the role of the prime minister in mixed presidential-parliamentary systems. This stream of research contends that regime stability is a function of the interplay of the specific distribution of powers between the legislative and executive branches and these other intervening factors. In this paper, we identify a fourth important intervening factor-constitutional courts. Specifically, we examine the constitutional court in the transitioning nation of Ukraine to demonstrate the role that judicial institutions can play in mediating legislative-executive conflict and thereby contributing to regime stability.
Journal of Public Administration Research and Theory, Jul 1, 1996
With the passage of the Administrative Dispute Resolution Act, Congress intended to expand the us... more With the passage of the Administrative Dispute Resolution Act, Congress intended to expand the use of alternative dispute resolution techniques throughout the federal government in order to counter overjudicialization of the administrative process. A sunset provision and an evaluation requirement were included in the Act. This article presents analysis of empirical data focusing on implementation of the Act in federal departments and agencies and draws conclusions concerning the organization change strategy implicit in the Act as well as the success of implementation in the initial stages. The challenge of changing public organizations is a fundamental issue in organizational analysis (Rainey 1991, 223). While the types of changes organization analysts and policy makers seek are multiple, notable priority has been assigned of late to change that leads to increased responsiveness and competence of governmental institutions (Gore 1993; Lindblom 1994, 327). This judicialization of the administrative process is somewhat ironic; proponents of administrative process expected that they would avoid, judicial delays, encourage agency personnel to
... ИНФОРМАЦИЯ О ПУБЛИКАЦИИ. Название публикации, PUBLIC SERVICE CONFIGURATIONS AND PUBLIC ORGANI... more ... ИНФОРМАЦИЯ О ПУБЛИКАЦИИ. Название публикации, PUBLIC SERVICE CONFIGURATIONS AND PUBLIC ORGANIZATIONS: PUBLIC ORGANIZATION DESIGN IN THE POST-PRIVATIZATION ERA. Авторы, CR Wise. Журнал, Public Administration Review. ...
Annals of The American Academy of Political and Social Science, 1995
... 1993), p. 12. 2. Daniel Callahan, "Legislative Codes of Ethics," in Representation ... more ... 1993), p. 12. 2. Daniel Callahan, "Legislative Codes of Ethics," in Representation and Responsibility: Exploring Legislative Ethics, ed. Bruce Jen-nings and Daniel Callahan (New York: Plenum Press, 1985), pp. 229-30. arguing that a moral code takes precedence over one. ...
In recent years, public administration scholars have called attention to a blurring of the bounda... more In recent years, public administration scholars have called attention to a blurring of the boundaries between the public and private sectors. However, little attention has been focused on the administration of public programs that seek to impact private markets through direct government investment in private firms. The direct government investment approach is a new tool of government that has been applied in several countries and at multiple levels of government. Through an analytic mix of theory and attention to practice, this article leverages a deep case analysis of the U.S. Department of Energy's Advanced Technology Vehicles Manufacturing Loan Program to propose and utilize criteria for examining justifiable rationales for direct government investment, areas of administrative capacity necessary to manage such investments, and potential pitfalls of this new tool of government. Evidence for Practice • Relying on advocates' assertions of market failure to justify direct government investment in specific industries and/or firms is insufficient. A systematic analysis of existing private sector incentives, as well as those provided by other federal, state, and local programs, is needed. • Prior to initiating a direct government investment program, the existing and potential capacity of the government organization or organizations that will have responsibility for administering the program should be assessed. • Prior to investment in private firms, the appropriate metrics for program monitoring and assessment should be determined, including determining the program's expected independent contribution to altering the target market. Government agencies should consider risk and the potential for financial gain or loss to the taxpayer. • Direct government investment in private firms raises equity concerns that should be weighed against potential program benefits.
Should state administrators be required to perform assessments of potential violations of the Fif... more Should state administrators be required to perform assessments of potential violations of the Fifth Amendment before issuing a new regulation or applying an existing one? Should state regulations be confined to protection of public health and safety only and exclude other public interest goals for the "general welfare?" Should local governments be required to perform impact assessments of takings according to the state attorney general's mandated guidelines prior to taking a regulatory action? If as a result of the lawful application of a state regulation, a business person's property experiences a 25 percent decline in value, should the state agency that issued the regulation be required to pay for the amount of the decrease out of its budget? These and other questions are being answered in the affirmative by provisions in new laws governing state and local regulation being considered and passed by state legislatures across the country. The rise of the regulatory state, conflicts over land use and environmental regulation, political organizing by property rights groups, and federal judicial pronouncements have all sparked an explosion of state legislative initiatives concerning regulatory takings. Recent federal judicial decisions have set out an emerging, albeit somewhat muddled doctrine of regulatory takings that directly impacts a wide range of federal, state, and local regulatory activities. The doctrine states that under certain circumstances, many normal regulatory activities can be judged to have violated the Fifth Amendment's prescription that private property may not be "taken for public use without just compensation." Compensation can be required by the courts, even though the regulation leaves legal ownership in the hands of the private individual. These pronouncements coupled with concerted lobbying activities by property rights advocates across the country have led to a spate of new state statutes that in some cases embrace, and in others, extend requirements placed on regulators. These measures could portend complicating, if not extremely costly consequences for the exercise of government regulation, depending on the approach a state takes. In this article we provide a preliminary overview and analysis of the state property rights legislation enacted to date. We describe the extent and nature of these new statutes, explain and critique the major types of measures being adopted, and conclude with a discussion of the key issues raised by these acts and their implications for public administration. Federal Jurisprudence on Regulatory Takings One of the intentions of most of the new state statutes concerning property rights is to codify elements of the newly developing takings doctrine. A brief review, then, of the key Supreme Court rulings on regulatory takings is in order before moving on to the legislative approaches themselves. Since 1922, the U.S. Supreme Court has recognized the possibility that a regulation, as opposed to outright confiscation, could be judged a taking without just compensation (Pennsylvania Coal v. Mahon, 260 U.S., 1992). However, federal courts seldom invoked the "regulatory takings" doctrine or sided with private property owners against state interests until the 1980s. In the last 15 years, the takings doctrine has been elaborated, and property owners have begun to win more regulatory takings suits against state and local regulators in federal and state courts. The Supreme Court's preferred approach to assessing regulatory takings claims is for trial judges to conduct an ad hoc balancing of the "legitimate state interest" at stake with the burden placed on the property owner affected by the governmental action. The Court has preferred (but not always insisted) that courts assess each regulation as it is actually applied to a particular piece of property to determine if a taking has occurred rather than to assess the regulation when issued. …
Page 1. The Consolidation of Democracy in Ukraine . . CHARLES R. WISE and TREVOR L. BROWN This ar... more Page 1. The Consolidation of Democracy in Ukraine . . CHARLES R. WISE and TREVOR L. BROWN This article analyses the process of democratic consolai ali Ол in Ukraine. "Nie ultimate a tabi lit v of democracy lias 10 do ...
& Stepan argue that elite consensus on the distribution of power among political institutions is ... more & Stepan argue that elite consensus on the distribution of power among political institutions is a critical factor for democratic stability in nations in transition 1. According to Linz & Stepan, Disagreements among the core actors of transition over the type of government and electoral system may create questions about the legitimacy of the emerging democratic government, the decision-making process, and the future of the political system. Such institutional indeterminacy about core procedures necessary for producing democracy may not only leave the transition incomplete, but also postpone any consolidation of democracy. 2
In several key rulings since the mid-1980s, the U.S. Supreme Court has begun to reshape the conto... more In several key rulings since the mid-1980s, the U.S. Supreme Court has begun to reshape the contours of regulatory takings. The emerging doctrine appears to reaffirm private rights in property, narrow the reach of governmental regulation, and extend the scope of judicial review. Despite their "muddled" transitional nature, these developments in the regulatory takings arena are sending a clear signal to public administrators to attend more carefully to the effects of their regulatory actions on private property rights. The purpose of this article is to analyze the key issues currently at play and point to some of the potential implications for the field of public administration.
could have chosen othernise. They could have-and in some ways did-act out of something other than... more could have chosen othernise. They could have-and in some ways did-act out of something other than self-interest. To see the document as an expression of logic is both to let the framers off the hook and to sell them short. As Friedrich Nietzsche once observed: When the inquirer, having pushed to the circumference, realizes how logic in that place curls about itself and bites its own tail, he is struck with a new kind of perception: a tragic perception, which requires, to make it tolerable, the remedy of art (1956, p. 59). Storing's assessment makes a further observation that Spicer and Terry mention but should have explored more deeply: that the most fundamental problem with the founding arguments is that they put too much emphasis on individual rights, thereby "cutting each man off from his fellows and from God" (1979, p. 232). He suggests that making individual rights to life, liberty, and pursuit of happiness the preeminent moral rule leaves a "large opening toward slavery" by making the rights of others prudential constraints instead of moral ones. Storing argues that the founders tended to reduce justice to self-preservation, self-preservation to self-interest, and self-interest to "what is convenient and achievable" (1979, 226). Spicer and Terry have fallen into a similar trap, equating legitimacy with logic, and logic with self-interest. In so doing, they have obscured the deepest concer raised by their essay: the extent to which it is possible for politicians (including administrators) to "live in truth" (Ash, 1990; Havel, 1986)-that is, to attain moral excellence. As Vaclav Havel has reminded us, the greatest threat to human freedom is not the classic dictator but the phenomenon of impersonal power: power that is rooted in apparently neutral and objective logic. If so, then the responsibility facing public administrators today is to counterpose impersonal power with personal responsibility, conscience, and a politics growing from the heart rather than from a thesis. Havel urges us to renounce the vision of a rationally calculable and technologically achievable "welfare" in favor of "practical morality,...service to the truth, [and] essentially human and humanly measured care for our fellow humans" (Havel, 1986, p. 155). Havel's words warn public administrators of the risks attached to a practice that grounds itself in "pure" rationality. It may be the case that the terms of public life (indeed, life itself) ensure that the vast majority of us will live in half-truth. But we should not delude ourselves that we can eliminate the question of truth altogether. Nor should we want to.
Public services in many states have been placed under federal court supervision. In our 1991 PAR ... more Public services in many states have been placed under federal court supervision. In our 1991 PAR article, we examined the implications of the federal judicial decisions in supervising the Kansas City Metropolitan School District for the “new triumviate” governing public services—public officials, legislators, and judges. In this article, we examine judicial decisions affecting the same school district a decade later to reveal the impact of judicial supervision on the school district and to discern the implications for policy termination. We find that, once begun, judicially mandated federal court supervision of public institutions is not readily terminated, even pursuant to the wishes of the United States Supreme Court.
Public reporting burder for this collection of information is estibated to average 1 hour per res... more Public reporting burder for this collection of information is estibated to average 1 hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing this collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burder to Department of Defense, Washington Headquarters Services, Directorate for Information Operations and Reports (0704-0188), 1215 Jefferson Davis Highway, Suite 1204, Arlington, VA 22202-4302. Respondents should be aware that notwithstanding any other provision of law, no person shall be subject to any penalty for failing to comply with a collection of information if it does not display a currently valid OMB control number.
The 2000 presidential election exposed serious election‐administration deficiencies that affected... more The 2000 presidential election exposed serious election‐administration deficiencies that affected the presidential election and the confidence of the American people in the way elections are administered. The ensuing controversies also exposed significant issues in judicial—administrative relations. This article examines the factors involved not only in Florida, but also in the nation, and discusses lessons for the future of election administration and for public administration generally.
There is a primary debate, as yet unresolved, regarding the superiority of presidential or parlia... more There is a primary debate, as yet unresolved, regarding the superiority of presidential or parliamentary regime types for the stability of democratic government. Because qualitative and quantitative analyses have yet to demonstrate definitively whether one regime type is inherently more stable than the other, researchers have branched out in a number of directions. One prominent stream of research examines the role that key intervening factors have in determining regime stability, including the electoral system, federalism, and the role of the prime minister in mixed presidential-parliamentary systems. This stream of research contends that regime stability is a function of the interplay of the specific distribution of powers between the legislative and executive branches and these other intervening factors. In this paper, we identify a fourth important intervening factor-constitutional courts. Specifically, we examine the constitutional court in the transitioning nation of Ukraine to demonstrate the role that judicial institutions can play in mediating legislative-executive conflict and thereby contributing to regime stability.
Journal of Public Administration Research and Theory, Jul 1, 1996
With the passage of the Administrative Dispute Resolution Act, Congress intended to expand the us... more With the passage of the Administrative Dispute Resolution Act, Congress intended to expand the use of alternative dispute resolution techniques throughout the federal government in order to counter overjudicialization of the administrative process. A sunset provision and an evaluation requirement were included in the Act. This article presents analysis of empirical data focusing on implementation of the Act in federal departments and agencies and draws conclusions concerning the organization change strategy implicit in the Act as well as the success of implementation in the initial stages. The challenge of changing public organizations is a fundamental issue in organizational analysis (Rainey 1991, 223). While the types of changes organization analysts and policy makers seek are multiple, notable priority has been assigned of late to change that leads to increased responsiveness and competence of governmental institutions (Gore 1993; Lindblom 1994, 327). This judicialization of the administrative process is somewhat ironic; proponents of administrative process expected that they would avoid, judicial delays, encourage agency personnel to
... ИНФОРМАЦИЯ О ПУБЛИКАЦИИ. Название публикации, PUBLIC SERVICE CONFIGURATIONS AND PUBLIC ORGANI... more ... ИНФОРМАЦИЯ О ПУБЛИКАЦИИ. Название публикации, PUBLIC SERVICE CONFIGURATIONS AND PUBLIC ORGANIZATIONS: PUBLIC ORGANIZATION DESIGN IN THE POST-PRIVATIZATION ERA. Авторы, CR Wise. Журнал, Public Administration Review. ...
Annals of The American Academy of Political and Social Science, 1995
... 1993), p. 12. 2. Daniel Callahan, "Legislative Codes of Ethics," in Representation ... more ... 1993), p. 12. 2. Daniel Callahan, "Legislative Codes of Ethics," in Representation and Responsibility: Exploring Legislative Ethics, ed. Bruce Jen-nings and Daniel Callahan (New York: Plenum Press, 1985), pp. 229-30. arguing that a moral code takes precedence over one. ...
In recent years, public administration scholars have called attention to a blurring of the bounda... more In recent years, public administration scholars have called attention to a blurring of the boundaries between the public and private sectors. However, little attention has been focused on the administration of public programs that seek to impact private markets through direct government investment in private firms. The direct government investment approach is a new tool of government that has been applied in several countries and at multiple levels of government. Through an analytic mix of theory and attention to practice, this article leverages a deep case analysis of the U.S. Department of Energy's Advanced Technology Vehicles Manufacturing Loan Program to propose and utilize criteria for examining justifiable rationales for direct government investment, areas of administrative capacity necessary to manage such investments, and potential pitfalls of this new tool of government. Evidence for Practice • Relying on advocates' assertions of market failure to justify direct government investment in specific industries and/or firms is insufficient. A systematic analysis of existing private sector incentives, as well as those provided by other federal, state, and local programs, is needed. • Prior to initiating a direct government investment program, the existing and potential capacity of the government organization or organizations that will have responsibility for administering the program should be assessed. • Prior to investment in private firms, the appropriate metrics for program monitoring and assessment should be determined, including determining the program's expected independent contribution to altering the target market. Government agencies should consider risk and the potential for financial gain or loss to the taxpayer. • Direct government investment in private firms raises equity concerns that should be weighed against potential program benefits.
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Papers by Charles Wise