Deferential Approach Research Articles

Judicial Activism vs. Judicial Restraint: Balancing the Role of the Courts in a Democratic Society

the contrasting approaches of judicial activism and judicial restraint and their implicationsfor the role of courts in a democratic society. It explores the tensions between these approaches and thechallenges of striking a balance between judicial intervention and deference to other branches ofgovernment. Judicial activism refers to a proactive approach by courts in interpreting laws and theConstitution, often involving the expansion of individual rights and the correction of perceivedinjustices. This approach empowers courts to address social and political issues, but it also raisesconcerns about judicial overreach and the usurpation of legislative or executive authority. In contrast,judicial restraint emphasizes a more deferential approach by courts, limiting their intervention inpolitical and policy matters and deferring to the elected branches of government. While this approachrespects democratic processes and separation of powers, it can also lead to the perpetuation of systemicinjustices and the neglect of marginalized groups.

The Dynamics of Proportionality: Constitutional Courts and the Review of COVID-19 Regulations.

Abstract The COVID-19 pandemic has made it clear that even when using trusted legal tools, courts may run into challenging problems. Governments reacted to an unprecedented (at least in the context of post-WW2 era of fundamental rights) global crisis by adopting measures that drastically limited fundamental rights in order to protect the lives and health of many. Courts, of course, were entrusted with protecting fundamental rights against governmental overreach. The question was, how strict should the courts be when reviewing governmental acts. On the one hand, they could have relied on substantive proportionality assessment. This option, however was virtually ignored and most courts have opted for a deferential approach. This article analyzes both of these approaches, their strengths and weaknesses, but ultimately it argues that a third option - semiprocedural review - is the best way out of this judicial conundrum. Relying on comparative as well as theoretical arguments, it argues that semiprocedural review is the best way to deal with challenging empirical question - even under conditions of epistemological uncertainty.

Accommodations of private and family life and non-traditional families: the limits of deference in cases of cross-border surrogacy before the European Court of Human Rights.

The European Court of Human Rights (ECtHR) case law on cross-border surrogacy establishes that a 'general and absolute impossibility' of obtaining recognition of the relationship, legally established in another country, between a surrogate-born child and their intended parents will violate the child's right to respect for private life. This approach requires States to accommodate familial bonds created through cross-border surrogacy and limits the margin of appreciation available to States to determine their national response. In recent case law, the ECtHR has adopted an interventionist approach in respect of national decision-making and has gone further than might be expected under the principle of subsidiarity. Examination of the emerging body of jurisprudence on cross-border surrogacy, however, reveals a preference for 'traditional' family formations, with the ECtHR tending to adopt a less interventionist and more deferential approach to national decision-making where the family at the centre of the case deviates from the structure of the family reflected in the seminal cross-border surrogacy case of Mennesson v France App no 65192/11 (ECtHR, 26 June 2014). This approach leads to inconsistency in the cross-border surrogacy case law as it creates something of a moving target for the vindication of children's rights in 'less traditional' family forms.

The Autonomy of Administration

Justice Rosalie Abella is closely associated with deference to administrative decision makers. I will argue that her deferential approach was multifaceted, much more sophisticated than might typically be assumed. Abella J’s administrative law jurisprudence is as much about administrative autonomy as it is about judicial deference. On one level, Abella J’s jurisprudence is a jurisprudence of judicial restraint, preaching limited judicial oversight of the administrative process. This reflects the conventional way of thinking about deference in administrative law as a doctrine requiring judicial restraint: it is a shield protecting administrative decision makers from judicial interference. Accordingly, she supported a broad presumption of deference to administrative decision makers and articulated a fairly non-interventionist conception of reasonableness review. But, on a deeper level, Abella J’s jurisprudence is more radical. As I explain, Abella J was not committed simply to a restrained approach to judicial review but, rather, to promoting the autonomy of public administration: she furnished swords to administrative decision makers, allowing them to carve out additional space in which to operate and articulate applied versions of legal norms. Her commitment to administrative autonomy, rather than simply to judicial restraint, prompts reflection about the basis of Abella J’s administrative law philosophy, which must ultimately be grounded in her trust of the administrative process, aligning her with the so-called ‘functionalist’ school of thought associated with progressive thinkers. I then turn to the Supreme Court of Canada’s recent rearticulation of Canadian administrative law in the Vavilov case – a rearticulation with which Abella J expressed firm disagreement. I reflect on why the majority and Abella J diverged in Vavilov and suggest that the key features of Abella J’s jurisprudence – restraint and autonomy – are rooted in a mode of thinking about administrative law that has fallen out of favour.

Beyoncé: At Work, On Screen, and Online

Beyoncé: At Work, On Screen, and Online

Patients, doctors and risk attitudes

A lively topic of debate in decision theory over recent years concerns our understanding of the different risk attitudes exhibited by decision makers. There is ample evidence that risk-averse and...

Social Security Reform and the Untapped Potential of Human Rights Law

Abstract The courts have done little to ameliorate the harsh ‘austerity’ reforms pursued by the government since 2010, adopting a highly deferential approach towards human rights claims in the social security context. This article identifies the two key moves to achieve this result: adopting the manifestly without reasonable foundation standard of justification and treating indirect discrimination claims on suspect grounds as not ‘real’ discrimination claims. It shows nonetheless the untapped potential of Convention rights, since even within this framework strong arguments were still available to the courts, based on the functioning of the social security system, which should have rendered two of the harshest reforms, the two-child limit and especially the benefit cap, Convention incompatible. The cap, which limits the subsistence benefits of unemployed families, is justified as a work-incentive policy, yet through Universal Credit the state also independently assesses families affected by the cap as doing all that they reasonably can to find work.

Understanding Medical Malpractice Lawsuits.

Understanding Medical Malpractice Lawsuits.

‘Unforeseen Developments’ Before and AfterUS – Safeguard Measure on PV Products: High Standard or New Standard?

AbstractThis paper offers a comprehensive study of the jurisprudence on the ‘as a result of unforeseen developments’ test under the WTO's safeguards (SG) rules. It contributes to the existing scholarship by making three fresh arguments. First, the Appellate Body's decision to ‘revive’ this test as a prerequisite for the application of SG measures is not necessarily incompatible with the drafting record of the SG Agreement, even though this agreement does not make explicit reference to the test. Second, the test is not excessively difficult to satisfy under the standard of review established by case law, even though governments failed to pass it in almost all SG disputes to date. Third, in sharp contrast, the recentUS–Safeguard Measure on PV Productsdecision took a strikingly more deferential approach which fell far short of the established standard of review, leading to the first and only decision in which the test was found to be satisfied. This decision has arguably created a new standard which could lead to abuse of SG measures and damage to the dispute settlement system and hence should be avoided in future disputes.

Intra-Church Property Disputes and the Failure of Neutral Principles: A Call for a Return to the Deference Standard

The issue of intra-church property disputes is one that is simultaneously quite old in American history and perhaps of greater relevance now than ever before. Given ever-increasing dissension within Christian church bodies over issues including homosexuality, women's ordination and racial justice, there are currently numerous church property disputes outstanding in the courts, and there are likely to be many more in the near future. From 1871 until 1979, the Supreme Court of the United States consistently took a deferential approach in property cases that involved church bodies with their own authorities and tribunals. When a dispute arose over church doctrine, polity or discipline and a hierarchical church reached its own decisions regarding proper ownership of the church's property, the Supreme Court determined that civil courts should defer to that church's internal decision-making process. The court first created this doctrine as a matter of ‘federal common law’ but in 1952 anchored it in the First Amendment's Free Exercise and Establishment clauses, applied to the states through the Fourteenth Amendment. During the mid-twentieth century, the Supreme Court consistently extended the deference standard against any state-level attempts to restrict or circumvent it. However, in the 1979 case of Jones v Wolf the court changed its standard significantly and adopted a ‘neutral principles’ approach, which weighs a church's internal documents and deliberations against property deeds, state property and trust statutes, and other sources, in an attempt to allow secular courts to rule on such cases while avoiding potential First Amendment concerns.

Religious Exemptions

Religious Exemptions

The Institutional Challenges of a Cross-Border Insolvency Regime

Policymakers in India deferred including a regime for cross-border insolvencies in the otherwise comprehensive Insolvency and Bankruptcy Code of 2016. Since then, the government has proposed adopting the UNCITRAL model law on cross-border insolvencies, spurring a flurry of discussion and debate about the design of that particular regime and other possible alternatives. It appears likely, although not certain, that the country will soon adopt the model law. This symposium Essay focuses on an important question of implementation, i.e., that the effectiveness of any approach to cross-border insolvency depends not only on the design of the applicable legal regime but also on other various institutional factors. Chief among these factors in India will be the performance of the National Company Law Tribunals that are charged with employing the regime to resolve cross-border insolvencies. As an initial matter, these tribunals will need to develop expertise in the growing jurisprudence related to the UNCITRAL model law. Furthermore, any modern approach to cross-border insolvencies, and especially the UNCITRAL model law, is premised on a high degree of international cooperation, efficient communication and coordination, predictability, and, occasionally, the exercise of deference to foreign jurisdictions and judicial actors. The tribunals have limited experience with this kind of highly cooperative and deferential approach to cross-border commercial litigation, so the underlying institutional capacity to employ the regime as designed will need to be developed over time. Policymakers should anticipate that after the legal design of India’s cross-border insolvency regime is settled, careful attention should be given to implementing it by, among other things, helping the NCLT develop the necessary expertise and an institutional commitment to facilitating cross-border insolvencies under the new regime.

The Consensus Rule: A New Approach to Scientific Evidence

Founded on good intentions but unrealistic expectations, the dominant Daubert framework for handling expert and scientific evidence should be scrapped. Daubert asks judges and jurors to make substantively expert determinations, a task they are epistemically incompetent to perform as laypersons. As an alternative, this Article proposes a new framework for handling expert evidence. It draws from the social and philosophical literature on expertise, and begins with a basic question: how can laypersons make intelligent decisions about expert topics? From there, it builds its evidentiary approach, which ultimately results in an inference rule focus on expert communities. Specifically, when dealing factual issues involving expertise, the legal system should not ask factfinders the actual substantive questions, but instead should reframe its questions to be deferential to the relevant expert community. To satisfy the requirement of proving causation in a toxic tort case, the question should not be: Does drug A causes disease X? The more appropriate question is: Does the scientific community believe that drug A causes disease X? This deferential approach solves the epistemic competency problem, repairs many of the unintended structural distortions created by Daubert, and ultimately reflects a better understanding of science. The Article also responds to possible legitimacy, policy, and implementation concerns raised by its deferential approach.

The State Giveth and Taketh Away: Public Sector Labour Law, the Legitimacy of the Legislative Override Power and Constitutional Freedom of Association in Canada

This article investigates the role of courts and legislatures in the design and enforcement of labour laws in the context of public sector employment. It does so by focusing on government employers’ legislative ability to temporarily override public sector labour rights, or to displace outcomes achieved under their processes. This issue is analysed through a case study of Canada, a country which offers constitutional protections for freedom of association, but which is also constructing a highly deferential approach to the constitutional review of override statutes. As a result of this deference, governments have been afforded significant leeway in the use and design of override legislation, which serves to undermine the legitimacy of the underlying public sector labour law regime. The result is to shake the confidence of public sector employees in the promise of workplace power redistribution and workplace voice and to undermine the legitimacy of public sector labour law. Because override legislation can so fundamentally undermine public sector labour rights, the courts should avoid excessive deference and instead undertake an active constitutional review of their use, where constitutional protections are available. Judicial Deference; Public Sector Labour Law; Legislative Override; Freedom of Association; section 2(D); The Canadian Charter of Rights and Freedoms; The Expenditure Restraint Act, Pre-Legislative Consultation; Legitimacy; Special Interests

‘Re-constituting’ the Internal Market: Towards a Common Law of International Trade?*

Abstract Are the trade philosophies behind the EU internal market and the WTO international market converging or diverging; and are we, or are we not, moving towards a ‘common law of international trade’? Twenty years ago, an interesting—and swiftly famous—answer to this question was given by Joseph H.H. Weiler. Studying the ‘constitution of the common market’, the historical evolution of free movement law is here divided into five periods or generations. The underlying Weiler thesis is thereby as simple as it is beautiful: starting with an early radical philosophy in Dassonville, the European Union has gradually and consistently moved away from its original hyper-liberal approach towards an ever more deferential approach; and the transformation of Article 34 TFEU into a discrimination format ultimately leads to a convergence with international law. What are the empirical and normative credentials of this stylised construction of the internal market? This article argues that there are fundamental shortcomings in this standard interpretation of the evolution of the internal market, and that a historical reconstruction arrives at a very different empirical and normative picture. What can this ‘revisionist’ result mean for EU law scholarship in general? If EU constitutionalism wishes to ‘re-constitute’ its object of study properly, it needs to abandon the abstract ways of philosophizing that have become commonplace in the last 25 years. Part and parcel of this methodological renaissance must be a renewed commitment to test (constitutional) theory against (judicial) practice.

'Re-Constituting' the Internal Market: Towards a Common Law of International Trade?

Are the trade philosophies behind the EU internal market and the WTO international market converging or diverging; and are we, or are we not, moving towards a “common law of international trade”? Twenty years ago, an interesting and – and swiftly famous – answer to this question was given by Joseph H.H. Weiler. Studying the “constitution of the common market”, the historical evolution of free movement law is here divided into five periods or generations. The underlying Weiler thesis is thereby as simple as it is beautiful: starting with an early radical philosophy in Dassonville, the European Union has gradually and consistently moved away from its original hyper-liberal approach towards an ever more deferential approach; and the transformation of Article 34 TFEU into a discrimination format ultimately leads to a convergence with international law. What are the empirical and normative credentials of this stylised construction of the internal market? This Working Paper argues that there are fundamental shortcomings in this standard interpretation of the evolution of the internal market, and that a historical reconstruction arrives at a very different empirical and normative picture. What can this “revisionist” result mean for EU law scholarship in general? If EU constitutionalism wishes to “re-constitute” its object of study properly, it needs to abandon the abstract ways of philosophising that have become commonplace in the last 25 years. Part and parcel of this methodological renaissance must be a renewed commitment to test (constitutional) theory against (judicial) practice.

Judicial Review of the Legislative Process in Hong Kong: A Comparative Perspective

This article examines the deferential approach to judicial review of the legislative process as adopted by the Court of Final Appeal in Leung Kwok Hung v The President of Hong Kong Legislative Council. Through a comparative analysis, it explains that the underlying basis on which the doctrines of separation of powers and the parliamentary privilege of exclusive cognizance, and the corresponding principle of non-intervention, are significantly different in Hong Kong. Given Hong Kong’s semi-democratic system under the “one country, two systems” rubric, it argues for a less traditional allocation of power between the different institutions of government and a more assertive judiciary vis-a-vis the legislature. Moreover, it suggests the necessity of developing a human-rights-based approach to the adjudication concerning the non-intervention principle in order to maintain its common law system with liberal principles under the “one country, two systems” rubric.

HOW THE PANDEMIC MIGHT BOOST REDISCOVERING JUDICIAL DEFERENCE TO ADMINISTRATIVE CHOICES AS A POSSIBILITY

This paper presents initial signs of a new sensibility in the Brazilian Constitutional Court in reassessing the deferential approach when it comes to judicial review over public choices held by the administrative state. Precedents can be presented before the pandemics, and event after, in provisional injunctions held by the Court, considering a normative framework edited to address the health crisis that expanded the deliberative powers of federative entities and administrative agencies. Even though the limited number of rulings prevent classifying those events as a new trend in the Brazilian Constitutional Court, peremptory refusal on the deferential approach is certainly overcome.

Education Policy Trump Style: The Administrative Presidency and Deference to States in ESSA Implementation

Abstract Since the 1960s, U.S. presidents have used their executive, administrative, and political power to pursue policy goals in elementary and secondary education. This article analyzes the K-12 education policy strategies pursued during the first three years of the Donald Trump presidency, focusing on two main aspects of Trump’s approach to education policy. First, I analyze Trump’s heavy reliance on executive and administrative tools and his use of these tools to promote state flexibility, diminish federal direction on civil rights issues, and expand private and public school choice. Second, I examine the Trump administration’s approach to implementing the Every Student Succeeds Act of 2015 (ESSA), especially in reviewing state plans pursuant to the ESSA. The administration took a highly deferential approach as states sought approval for their ESSA plans and in a way that suggests the Trump presidency is shifting federal involvement in K-12 education policy away from prioritizing equity and oversight.

Eyewitness Identification and the Problematics of Blackstonian Reform of the Criminal Law

A substantial number of wrongful convictions are attributable to inaccurate identifications of perpetrators, stemming from the difficulties that eyewitnesses can experience in accurately perceiving and later recalling faces. Many have argued that courts should employ prophylactic rules to prevent the admission of unreliable identification evidence. Yet, most jurisdictions continue to follow the deferential approach to the admission of eyewitness identification evidence taken by the United States Supreme Court. Commentators have universally condemned this state of affairs. This article offers a departure from the existing commentary by taking seriously the possibility that courts have good reason for their reluctance to embrace rules excluding evidence thought to present unduly high risks of convicting the innocent. The case for reform is rooted in Blackstone’s admonition that the law should be wary of admitting evidence of guilt, preferring the acquittal of the guilty to the conviction of the innocent. It is difficult, however, to construct a Blackstonian case for exclusion of evidence thought unduly likely to produce wrongful convictions. Given our limited knowledge about the error rates that inhere in most types of evidence, Blackstonian reform has no ascertainable stopping point; excluding evidence that poses what is thought to be an undue risk of wrongful conviction could result in the exclusion of virtually all evidence of guilt. To illustrate the point, this article considers an issue on which the lower courts have split—the role of corroborative evidence in assessing the admissibility of an eyewitness’s identification. Although Blackstonian prophylactic rules reject consideration of corroborative evidence, the reliability of most evidence cannot be assessed in isolation. Reliability can usually be assessed only in the context of all pertinent evidence. Thus, totality-of-the-circumstances tests, such as the approach reflected in the Supreme Court’s decisions on eyewitness identification, are about the best we can do. Prophylactic evidentiary rules designed to reduce rates of wrongful conviction turn out to be deeply problematic.