Administrative Law as a Source of Rights

Abstract

This article challenges the pervasive assumption that judicial review of administrative action is not concerned with rights. Making a break from this orthodoxy, it proposes a theory of judicial review that suggests that its purpose is to protect distinctive administrative law rights held by those subject to public administrative power. This rights‐based theory makes sense of the structure of applications for judicial review in which, paradigmatically, an individual subject to an administrative decision makes a claim against the state that the public official responsible for that decision failed to meet the relevant administrative law standards, and accordingly demands a remedy. The bulk of the article is dedicated to addressing the major objections to a rights‐based theory, including those arising from public interest standing and the nature of judicial review remedies. The analysis shows that each of these objections fails, clearing the ground for a fuller development of a rights‐based theory of judicial review in future work.