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58 Cards in this Set
- Front
- Back
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Public law narrow |
Constitution law and administrative law (so no criminal) |
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Public law broad |
Public law is anything but private law |
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What do administrative law and constitutional law have in common? |
- tension between effective government and protecting individual rights - law is instrument for the state to achieve certain objectives |
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Of and against the state means the balance between... (Bignami) |
Effective government (capable administration) Vs protection of individual rights (accountable administration) |
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What is administrative law? |
Law regulating the (public) administration and its relationship with citizens - legislative, executive, judicial |
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Key issues in administrative law |
- legislature cannot legislate on every single aspect of society - principle of legality - administrative actors need discretion but decisions must be subject to judicial review |
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Principle of legality |
Administrative agencies should be conferred determined powers by law for specific purposes |
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Discretion (Bignami) |
Twin objectives of neutrality and expertise vs democracy and liberal rights |
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Principles of good administration |
Lawfulness Non-discrimination Legal certainty Proportionality Legitimate expectations Right to a fair hearing before decion-making Right to have one's affairs handled impartially and fairly |
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What is GALA? |
General administrative law act |
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Why GALA? |
- harmonization - codification |
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Content of GALA? |
Communication between public bodies and citizens Administrative decion-making Judicial procedures |
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Sources of administrative law |
1 constitution, international treaties, EU law, general principles of law 2 statutes 3 delegated rulemaking 4 case law |
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Examples of statutes |
Administrative procedure acts (APA) Sector specific legislation Freedom of information act (FOIA) Data protection laws |
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Public body by nature |
= established by statute |
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Public body through competence |
= have been awarded statutory powers |
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Public body through organization |
= part of another public body |
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Different types of administrative action |
- general rule-making - single-case decion-making - investigations - data management |
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Limitations in administrative law |
Public bodies have to follow specified administrative procedures and processes principles many of which can be found in APA |
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Protection in administrative law |
APA also contain procedures that help citizens and business to fight a fair fight with public bodies |
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Administrative law & information / data citizens perspective |
* access to files (in administrative proceedings) * Freedom of information / transparency |
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Administrative law & information / data Administrations perspective |
* evidence based rulemaking * Informed decision-making including investigations |
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Stages in the big data processes |
Collection (storage & preparation) Analysis Use (interpretation and application) |
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Phases of analysis and use have the biggest opportunities and risks --> new rules are needed |
* strict enforcement of existing ban on automated decision making * Sunset clause of 3-5 years for big data projects * Enhancement of data processing transparency |
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Other terms for FOIA |
Open records Sunshine laws |
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Why FOIA? |
Constitutional right to know Otherwise the right tot access of information is usually unused |
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Rule of law |
There are some key notions that any modern state should comply with |
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Rule of law notions |
* government / agents / private entities are accountable under the law * Laws are clear/stable/publicised and applied evenly * Process is accessible, fair and efficient * Justice is delivered timely |
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Steps in administrative decison-making |
1 preparation of the procedure 2 administrative 3 judicial review |
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Document based system |
File a request for a specific document |
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Information based system |
File request for information without referring to a specific document |
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From FOIA to an open government partnership. 2 reasons |
1) partly inspired by international developments 2) partly inspired by national experiences with the Dutch FOIA |
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Open data |
= data that can be used, re-used and re-distributed freely by anyone for any purpose |
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Objectives with open data policies |
* adding social and economic value * Improving public services * Transparent government * Efficient government |
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Criminal procedure |
Correctly applying substantive criminal law (finding out the limited truth) (while protecting rights of defendants and victims) |
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Sources of criminal law |
1) constitution, international treaties, EU law, general principles of law 2) statutes 3) case law |
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Sources of criminal law - statutes |
- criminal codes (substantive) - criminal procedural codes |
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Examples of fundamental rights in criminal law |
* legality principles * Prohibition of torture * Right to liberty and security * Fair trial * Right to protection of private life * Freedom of expression |
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Phases in criminal law |
* Investigation * Prosecution * Trial * Execution of sentence |
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Actors in criminal law |
* police * Prosecution * Investigative judge * Courts * Defence & defendant * Victim * Witness |
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Goals of criminal law |
* retribution * Deterrence * Reparations / restoration |
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Specifications of deterrence |
* general: set an example society * Specific: show that person you're not allowed to do that * Protecting society * Resocialization |
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In what phase of criminal law will the freedom of information apply? |
Trial |
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Classic policing |
Backward looking. Solve crimes that already have been convicted |
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Intelligence led policing |
Policing model built around the assessment and management of risk. Came up because of organized crime. Predictive modeling and measures |
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Evidence must be... |
Correct Reliable Relevant Gathered according to the rules |
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Risks of policing and data science |
* reliability / correctness * Presumption of innocence * Privacy * Discrimination * Legal / professional privilege * Criminal responsibility for one's actions |
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Inquisitorial system |
* court is actively involved in investigating facts of the case * Seek the truth by questioning those most familiar with the events in dispute * Places rights of the accused second to the search for the truth |
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Adversial system |
* role of the court is primarily that of an impartial referee between the prosecution and the defense * Trial is prominent * Places premium on the individual rights of the accused, truth second
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The tension in administrative law caused 2 major developments |
1) increasing de-territorialization of administrative law 2) the growing privatisation of public administration |
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3 types of administrative action |
Formal adjudication Informal adjudication Investigation |
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Nuremberg code principles (1-5) |
1. Informed consent 3. Based on previous knowledge that justifies it 2. Aim at positive results for society3. Based on previous knowledge that justifies it4. Avoid physical and mental suffering5. No risk of death or disabling injury society3. Based on previous knowledge that justifies it4. Avoid physical and mental suffering5. No risk of death or disabling injury 4. Avoid physical and mental suffering 5. No risk of death or disabling injury |
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Nuremberg code principles (6-10) |
6) Risk in proportion to expected benefits 7) preparations and facilities to protect subjects against risks 8) fully trained and scientifically qualified staff 9) subjects must be free to immediately quit the experiment 10) stop the experiment if continuation would be dangerous |
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Belmont report principles |
- respect for persons (autonomy, protection for those with diminished autonomy) - beneficence (ensure well-being) - justice (distribution benefits and burdens) |
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Rules from scientific research do not translate well to data science |
1) research/practice distinction 2) primary/secondary data 3) intervention upon research subjects 4) aims/nature of research |
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What theories can take us I to the era of big data? |
- Privacy as dignity - Dignity as identity-building - freedom from control and discipline through data - data justice for development - global data justice |
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Conclusions ethics lecture 3 |
1) on the global level, think about needs not rights 2) locate discussion in the 'domain.of public reasoning' 3) seek ways to bring national/regional conversations to the global level 4) where there is an institutional gap, building new institutions |
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International best practices FOIA |
- scope of.foia - affirmative disclosures - review process - exemptions - adoption of complementary laws |
