Basis For Judicial Review Research Articles

Towards the Rule of Law: Judicial Control of Administrative Discretion in a Comparative Context

Control of administrative discretion is an important concern in the development of the rule of law. According to Wade and Forsyth, the rule of law has four meanings, and one of them is that “government should be conducted within a framework of recognized rules and principles which restrict discretionary power”. While judicial review is crucial to discerning and enforcing the limits of discretionary power, its interaction with the constitutional principle of separation of powers invites careful consideration of its basis. In reconciling the two principles, British courts have developed reasonableness as the primary basis for judicial review, which was further impacted by continental proportionality after joining the EU. On the other hand, China has adopted distinct criteria for judicial review, namely “manifest unfairness” and “manifest unjustness”. This paper compares judicial control of administrative discretion in the UK and China and argues that despite the gap, China still has a tendency toward judicial initiative, which entails the “thick” meaning of the rule of law. Further, this paper proposes that China should bridge the gap in a progressive way. Part I explores the principle of reasonableness and the principle of proportionality in the UK and reflects on the developmental history of the British approach. Part II examines the situation in China and provides a comparative analysis with the UK’s approach. Part III puts forward suggestions.

Boa administração pública e fundamentos constitucionais das políticas públicas na perspectiva do Supremo Tribunal Federal

This paper presents a brief reflection on the fundamental right to good administration, the constitutional foundations of public service and public policy and the possibilities and limits of judicial review in Brazil. The problem that drives this work is to understand whether there is plausibility in speaking of the right to good public administration in Brazil and to what extent it can be a basis for judicial review. The study is based on a survey of the literature, legislation and case law. It uses a deductive method and an analytical procedure, and aims to understand the limits and possibilities of the Judiciary’s action for the protection of fundamental rights, especially when they involve the discussion of good public administration (as a fundamental right) and the constitutional foundations of public service. Thus, the articles begins with a consideration of the conceptual aspects of the proposed topics and then analyzes the current perspectives on the topic based on the understanding of the Supreme Court in decisions involving the right to education.Keywords: good public administration, public service, jurisdictional control.

Administrative Law: A Values-Based Approach

I focus in this essay on judicial review of administrative action, looking at the subject “from the inside, trying to make sense of lawyers’ reasons and arguments as they are actually presented and defended”. Rather than starting from the constitutional basis of judicial review and working backwards to practice, I start by identifying the core values revealed by the practice of administrative law and then work forwards to analyze how they influence the shape and trajectory of the law.My focus is on administrative law doctrine. I contend that administrative law in this sense is best understood by reference to several core values: the rule of law, good administration, democracy and separation of powers. I trace the contours of these values in Part II. These values inform doctrinal choices that courts make in the areas of process, substance and remedial discretion, a body of law considered in Part III. Occasionally they must be complemented by institutional considerations, discussed in Part IV, centering on the need to conserve scarce judicial resources but taking account also of the role of judges in the common law tradition. I take the time in this paper to discuss important areas of administrative-law doctrine and determine whether judicial decisions are influenced by a set of values. Identifying these values is a useful task. Explaining doctrinal rules and outcomes in particular cases is valuable, all the more so if common themes can be traced across very different areas of administrative law. A values-based framework is capable of accommodating the development of doctrine over time, an urgent matter given the rapid growth of the administrative state and legal constraints on it in recent decades. It may also help to account for convergence and divergence across the common-law world: Commonwealth countries have (largely) a common heritage, one which they treat in different ways, but (generally) in a fashion that is comprehensible to all common lawyers, not just the natives of a particular jurisdiction.

Intention, Supremacy and Judicial Review

Two competing theories have emerged as providing the constitutional basis for judicial review in the English courts: the ultra vires theory and the common law theory. Both attempt to rationalise the operation of judicial review in a way which is consistent with the doctrine of parliamentary sovereignty. They differ in their conceptions of what the doctrine requires. It is inherent in the ultra vires theory that sovereignty requires adherence to Parliament's assumed intent whereas under the common law theory it simply requires adherence to Parliament's legislation. The supporters of the former theory submit that we must assume Parliament intends the standards of good administration to apply to statutorily derived public power; indeed, that this is the only plausible assumption to make. I examine these claims. I argue that we cannot accurately ascribe any intention to Parliament and, consequently, we cannot claim that a particular assumption about Parliament's intent is the only one we can plausibly make. I also challenge the argument that we must assume Parliament intends the standards of good administration to apply to statutorily derived public power. I contend that this assumption is only necessary if sovereignty does indeed require adherence to Parliament's presumed intent but that this is not how we usually think of the doctrine; rather, parliamentary sovereignty is traditionally taken to prohibit the courts from acting contrary to Parliament's legislation, not its intention. Finally, I argue that reliance on legislative intent brings possible disadvantages.

JUDICIAL SCRUTINY OF MERGER DECISIONS IN THE EU, UK AND GERMANY

AbstractThe appropriate role of the courts in controlling the discretion of merger authorities has become one of the key issues in European merger law and policy in recent years. This article investigates judicial review of merger decisions, taking a comparative approach by examining cases from the EU, UK and Germany. We observe an apparent increase in the willingness of the EU and UK courts to scrutinize merger decisions, and a long-standing tradition of close scrutiny in Germany. In respect of the EU and UK, we consider agency theory offers a convincing explanation—that increased scrutiny is explained by the need to enhance the credibility of merger policy. In Germany, the constitutional basis of judicial review differs significantly, and the relatively close scrutiny exercised by the court is better explained by the very different constitutional context.

Vindicating common law constitutionalism

This paper questions Thomas Poole's assertion that judicial review is not ‘value orientated’ (see (2005) 25(1) Legal Studies 146). In doing so, the paper seeks to demonstrate that the account of judicial review given by common law constitutionalist writers provides an accurate description of the approach taken by the courts in the last 10 years. The paper first considers Poole's objections to common law constitutionalism. It then proceeds to assess the writings of those relied upon by Poole against the case-law of the last decade. This is done by reference to three ‘themes’– the basis of judicial review; a substantive rule of law; fundamental values and constitutional rights. The paper concludes by suggesting that when a thematic approach to the theory is adopted, the case-law of the last decade provides vindication for the main tenets of common law constitutionalism.

Moving Away From a Strict Scrutiny Standard for Affirmative Action

This article addresses the concept of strict scrutiny, the burden of persuasion test used by the courts to determine the constitutionality of affirmative action. Through a systematic analysis of U.S. Supreme Court decisions, it illustrates that strict scrutiny has been applied in an inconsistent, arbitrary manner and, therefore, should not serve as the basis for judicial review of affirmative action programs. It shows that the rule of law established under the Civil Rights Act provides an equally if not more compelling basis for judging the legality of affirmative action programs. Relying on the legal standards advanced by the courts under civil rights statutes provides managers with greater flexibility in developing and implementing affirmative action programs. In effect, the ability of governments to promote diversity of their workforces is greatly enhanced.

The Principle behind Common Law Judicial Review of Administrative Action—The Search Continues

The common law has had considerable difficulty in identifying a principle or principles by which to explain the role of the courts in reviewing administrative action. The constitutional basis for judicial review, combined with the discipline of a written Constitution, explains why the developments in English and New Zealand common law, in relation to judicial review is not appropriate or applicable to Australia.

Is rights based review justified?

This article critically evaluates the competing theories of judicial review to arrive at the conclusion, advanced by the writer, that the ultra vires doctrine does not provide a sufficient rubric as a justification for judicial review. It is the writer's view that rights based review has the attraction of objectivity and would be more appropriate as the basis for judicial review. It is contended that the justification for the ultra vires doctrine, as the basis for judicial review, is, at best, tenuous in England and can have no legitimacy, whatsoever, in other countries, with written constitutions, where the constitutional arrangements are quite different.

Exposing Sunstein's Naked Preferences

In Naked Preferences and the Constitution and subsequent articles, Professor Cass R. Sunstein argues that the Constitution requires legislatures to pursue public values or common goods. From this republican political theory, Sunstein argues for a theory of judicial review: when the Supreme Court reviews the constitutionality of a legislative act, the Court should ensure that the act does not reflect a mere "naked preference," but rather reflects some public value or common good. This essay questions the coherence of the concept of naked preferences by arguing that preferences are socially constructed not only through the political process as Sunstein suggests, but also through the judicial process. This essay describes Sunstein's theory of naked preferences and relates it to its historical roots, the theories of Alexander Bickel and John Hart Ely. It criticizes the concept of naked preferences as a basis for judicial review, and then discusses Sunstein's reluctance to accept fully the insight that all preferences are social constructs. It suggests how this insight may turn us towards a reconstructed vision of constitutional law. By combining Sunstein's theory with Bickel's theory -- pushed in a postmodern direction -- constitutional adjudication is recognized as a deliberative process or practice in which the Court participates with others in the construction and reconstruction of values, culture, and community. The Court's task is interpretive, requiring it simultaneously to search for and to create meaning.

Judicial Review in the Australian Federal System: Its Origin and Function

Dr Galligan examines the origin of judicial review under the Australian Constitution through an catalysis of the Conventions and Conferences preceding its drafting. A political scientist, he disputes the claim that there is no basis for judicial review in the Australian federal system and argues that the intention of the founders, influenced by Inglis Clark, was to create a powerful American-style court primarily to interpret the Constitution in the resolution of federal disputes. As a case study of the founders' intentions he considers the debates and “solution” of the question of control of Australia's inland river system.