Deferential Standard Of Review Research Articles

Reasonableness as Responsiveness in Administrative Law in the United States, United Kingdom, and Canada: Kant and Arendt on the Role of the Community in Deferential Judicial Review

Abstract When conducting judicial review of administrative decisions using a deferential standard of review, courts should give a greater role to the decision maker’s responsiveness to the interests of the community of judgment—those directly affected by the decision. This Article uses a theory of judgment developed by Immanuel Kant in the Critique of Judgment, and elaborated by Hannah Arendt, to justify why consideration for the community is essential to deciding reasonably. It also reviews the approach to deferential review in the case law of the United States, the United Kingdom, and Canada to determine what the effect would be of this new approach to assessing the reasonableness of a decision. While reviewing courts usually consider the rationality of the decision for achieving the decision maker’s statutory policy goals and the appropriateness of the decision maker’s appreciation of the relevant facts, they do not generally probe the responsiveness of their reasons to the concerns of those affected by it. This Article suggests that courts should do so. The result is that administrative law will in future require better quality reasons from decision makers. Probing the responsiveness of reasons to the concerns of the community of judgment will require courts to compare the weight that the decision maker has placed on facts and arguments to the weight given to them by community members. This will be a significant change in how courts conduct judicial review, but it should enhance the legitimacy of deferential judicial review.

Balancing Competences? Proportionality as an Instrument to Regulate the Exercise of Competences after the PSPP Judgment of the Bundesverfassungsgericht

Analysis of proportionality in the context of Article 5 TEU after the PSPP judgment – Bundesverfassungsgericht challenging Court of Justice to control European Central Bank’s motives – Doctrinal tradition of ‘smoking out’ illicit motives through proportionality – Article 5(4) TEU: proportionality of exercise of competences, primarily safeguarding member states’ autonomy – Court of Justice case law on proportionality: deferential standard of review towards measures of EU institutions – Bundesverfassungsgericht case law on federal competences and municipal autonomy: less deferential but still respectful standard of review – PSPP inconsistent with case law and with Article 5 TEU – Balancing-stage of proportionality unsuitable for motive control

A Fair Price and a Fair Deal: On the Future of 'Entire Fairness' in Freezeouts

Controlling shareholders can compel the sale of minorities’ shares in freezeouts, potentially to their financial detriment. To limit controllers’ opportunism and support the value of minorities’ investments, the Delaware supreme court has endorsed strong minority shareholder protections under the rubric of 'Entire Fairness' – the governing standard for cash-out mergers. However, the court of chancery has refused to apply Entire Fairness to tender offer freezeouts, and is advocating unifying freezeout doctrine around a looser, deferential standard of review. The influence of popular and Congressional concern over excess plaintiff lawyers’ fees and discovery costs is likely making itself felt, although the true extent of these litigation agency costs is unknown and likely overstated. This influence is evident in three recent court of chancery cases analyzed herein (Pure, Cysive and Cox), which advocate lesser scrutiny of controllers’ transactions. There are several problems with the court of chancery’s proposed reforms, including that they conflict with Delaware supreme court precedent. A fair price duty is crucial to minorities’ bargaining leverage with controllers, and controllers’ power financially to oppress minorities if their freezeouts are thwarted ('inherent coercion') remains a genuine concern for equity. Lack of minority consent is still a problem that equity should be responsive to. This Article presents the case for applying Entire Fairness review to cash-out mergers and tender offer freezeouts. The sole exception should be when a controller authorized an independent committee to conduct an auction or market check and agreed to sell if a substantially higher offer for the company surfaced.

Rethinking the Ramifications of Reasonableness Review: Stare Decisis and Reasonableness Review on Questions of Law

The recent fashion in the Canadian law of judicial review is to apply the reasonableness standard of review to virtually any decision rendered by an administrative decision-maker. Reasonableness review is a deferential standard of review that requires a court to ensure that the administrative decision falls within a range of reasonable outcomes that are defensible in light of the facts and law. When reasonableness review is applied to questions of law, the Supreme Court has occasionally ruled that the question admits of only one reasonable interpretation and has affirmed or quashed an administrative decision on that basis.This article addresses the difficult question of whether a judicial decision affirming that a provision admits of only one reasonable interpretation is strictly binding on an administrative decision-maker interpreting that provision in the future. If reasonableness review is premised on deference, then deference ought to apply to an administrative decision-maker’s interpretation of that question in the future, even if it differs from the court’s interpretation. After situating this issue within the principled foundation of the Canadian law of judicial review, this article explores possible solutions to this problem, attempting to balance the need to protect the rule of law against the rationale for deference to administrative interpretations of law in the first place. It ultimately concludes by suggesting that, should Canadian courts continue to apply reasonableness review to virtually all questions of law, a uniquely administrative law approach to stare decisis will need to be developed in order to maintain a coherent and principled system of judicial review.

Merck & Cie v. Gnosis: A more deferential standard of review for inter partes review decisions

<i>Merck &amp; Cie v. Gnosis</i>: A more deferential standard of review for <i>inter partes</i> review decisions

Transatlantic Perspective on Judicial Deference in Administrative Law

The United States (US) concept of judicial deference in administrative law limits the scope of judicial review of administrative agencies’ actions in light of agencies’ superior expertise and separation of powers arguments. It may serve as an interesting point of reference for the European discussion about adequate institutional balance between administration and courts.The Article analyses whether there are grounds for the validity of the concept of judicial deference in Continental Europe and in what areas (law, facts, or both). As a starting point, it remains generally accepted in Europe that it is the role of courts (and not administrative agencies) to interpret the law. Against this background, standards stemming from Article 6 of the European Convention on Human Rights (ECHR) are analyzed in order to determine whether a deferential standard of review is permissible under the ECHR principle of full judicial review. The analysis of the jurisprudence of the European Court of Human Rights (ECtHR) leads to the conclusion that there is space for US-like judicial deference under the European fundamental rights framework when it comes to questions of fact. On the other hand, the ECtHR’s jurisprudence does not offer much guidance as to whether any deference can be accorded to administrative statutory interpretation. Further study of the review by European Union (EU) courts of the European Commission’s decisions in the sphere of competition law shows that judicial deference is accorded in Europe in practice. Importantly, EU Courts declare deference to the Commission’s complex economic assessment and defer to the Commission’s interpretation of its own soft law. When it comes to facts, the standard of review seems to correspond with the US courts’ substantial evidence test. On the other hand, legal questions concerning the Commission’s own soft law are reviewed in a way similar to the Skidmore standard. Further similarities between Europe and the US are observed in the US Courts of Appeals’ practice of reviewing the Federal Trade Commission’s decisions in the field of antitrust. The actual intensity of review exercised by US courts remains close to the EU Courts’ review of the European Commission’s decisions.This Article shows that differences between the US and Europe — especially if one takes into account US courts’ often non-application of Chevron — are not so significant as one would intuitively think. In conclusion, this Article proposes three variables that may be identified in both the US and European approaches to decide whether judicial deference to administrative agency decisions should be accorded or not.

The Compatibility of Deferential Standard of Judicial Review in the EU Competition Proceedings with Article 6 of the European Convention on Human Rights

The EU courts have been criticized by competition law scholars for exercising insufficient review when it comes to the EU Commission’s determinations in factual and economic matters. It has also been claimed that the General Court gives the Commission too broad deference when it comes to the assessment of fine for violation of Article 101-102 of the TFEU. Against this background the EU courts judicial review is analyzed from the perspective of Article 6 of the European Convention on Human Rights (ECHR) in order to answer the question whether deferential standard of review is permissible under the full jurisdiction principle prescribed in Article 6(1) of the ECHR. The analysis of the European Court of Human Rights jurisprudence leads to the conclusion that the way in which the EU Courts currently review the EU Commission’s decisions is not very likely to be found in violation of Article 6 of the ECHR after the EU accesses to the ECHR. However, further improvements of fairness of the administrative process before the Commission should be considered.

“Deference as respect” in WTO standard of review

PurposeIn WTO proceedings The Dispute Settlement Body has generally adopted a standard of review that is less than deferential even in the Anti‐Dumping agreement which envisages a deferential standard of review. What should be the applicable standard of review in WTO proceedings? The purpose of this paper is to present an analysis of the concept of “deference as respect” as developed by David Dyzenhaus and discuss its application to the WTO. This paper argues that the WTO should apply a standard of “deference as respect” in the interest of preserving economic sovereignty and the legitimacy of the WTO.Design/methodology/approachThe paper involves the analysis of relevant case law and also the analysis and application of the concept of “deference as respect” in WTO proceedings. It also uses a comparative methodology in that it highlights the application of domestic legal principles at the international level.FindingsThe main finding is that within the WTO there is need to balance the requirements of trade liberalisation which eschews protectionism and the requirements of sovereignty and legitimacy. This balance can partly be achieved when a standard of review akin to “deference as respect” is applied.Originality/valueThis paper is different from previous writings on WTO standard of review in that it applies the concept of “deference as respect”. This analysis and application will provide academics and members of the DSB with a new way of assessing the standard of review in the WTO.

AEDPA's Ratchet: Invoking the Miranda Right to Counsel after the Antiterrorism and Effective Death Penalty Act

In Davis v. United States, the Supreme Court established a high standard to invoke the Miranda right to counsel, holding that a suspect must make a clear and unequivocal request for an attorney. Two years later, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA), which created a highly deferential standard of review for state court judgments challenged under federal habeas corpus jurisdiction. Generally, a state prisoner challenging the alleged deprivation of his Miranda right to counsel may obtain federal court relief under AEDPA only if his conviction in state court was based on an ‘objectively unreasonable’ application of Supreme Court precedent. This Comment argues that the AEDPA standard of review effectively raises the bar for individuals to successfully invoke their right to counsel above what Davis requires, even outside the habeas context. This means that AEDPA's procedural standard of review has effected a shift in substantive law, even if courts did not intend that shift. To remedy this skewing of substantive law, this Comment proposes that the Supreme Court discourage trial and direct-review courts from basing their decisions on AEDPA cases.

The Brand X Liberation: Doing Away with Chevron’s Second Step as Well as Other Doctrines of Deference

This paper argues that the Court’s decision in National Cable & Telecommunications Ass’n v. Brand X Internet Services has cleared the path to discard the various doctrines of deference courts use to review agency interpretations and replace them with a single interpretive rule followed by arbitrary and capricious review. Courts have justified deference to: reasonable agency interpretations of ambiguous statutes where the agency employed its lawmaking powers (Chevron USA v. Natural Resources Defense Council); persuasive agency interpretations where the agency acted in some less formal way (Skidmore v. Swift & Co.); or even agency interpretations of their own ambiguous regulations (Auer v. Robbins). The most far reaching doctrine, Chevron has spurred countless debates. Courts and commentators have approached Chevron in two subtlety distinct ways, often at the same time. First, using the Deference Approach courts finding an ambiguity would defer to an agency interpretation so long as that interpretation was reasonable. Second, the Acceptance Approach required courts finding an ambiguity to envision whether the agency interpretation fell into the range of possible choices delegated to the agency by Congress and, if so, simply to accept the reasonable choice. Brand X confronted one of the few differences in these approaches: the effect of stare decisis when a court interpreted the statute prior to an agency interpretation worthy of Chevron. Although Brand X itself continued to employ rhetoric from both approaches, it is best justified, given its holding, under the Acceptance Approach. There are several important implications of Brand X’s endorsement of the Acceptance Approach. First, Brand X assigns an interpretive role to the courts to identify a zone of discretion afforded by Congress to the agency to make law and set policy. This zone includes both the substantive choices that the agency can make and how it must make them. Second, once the court has performed that task, then a reasonableness inquiry under Step Two of Chevron is not needed nor permitted. Courts can and should review the agency’s procedures for reaching its choice using the arbitrary and capricious standard of review. Finally, courts’ institutional mandate to identify a zone of agency lawmaking that relates to both substance and form renders other doctrines of deference indefensible. Discarding these various doctrines would: better focus both courts and agencies on their tasks; resolve some of the outstanding disputes concerning those tasks; eliminate pernicious vagueness that is too easily used to fudge analysis; and still maintain a clear, limited, deferential standard of review.

A Structured Approach to Calculating Reasonable Royalties

A significant part of the problem with patent damage awards comes from the non-exclusive, fifteen-factor “Georgia-Pacific” test now taken as the gold standard for calculating reasonable royalty damages. Simply handing the question of reasonable royalty to the jury, without more, is not a recipe for precision in damages analysis. But the fifteen-factor test may actually be worse, because it overloads the jury with factors to consider that may be irrelevant, overlapping, or even contradictory. And because the jury’s finding is the result of such a complex, multi-factor test, it is, as a practical matter, almost entirely immune from scrutiny by either district or appellate judges facing a deferential standard of review. The Authors suggest a structured approach to calculating reasonable royalties. Most of the factors in the Georgia-Pacific test in fact boil down to three fundamental questions: (1) what is the marginal contribution of the patented invention over the prior art?; (2) how many other inputs were necessary to achieve that contribution, and what is their relative value?; and (3) is there some concrete evidence suggesting that the market has chosen a number different than the product of (1) and (2)? By structuring the inquiry in this way, courts (or Congress) can not only simplify the question for the jury, but also enable district courts and the Federal Circuit to easily review the factual basis for a jury award.

Determining the Appropriate Standard of Review in WTO Disputes

The WTO's dispute settlement system - and, more particularly, WTO panels and the Appellate Body (AB) - are charged with ruling on the consistency of the actions of WTO Members with the obligations imposed by the WTO Agreements. To do so, panelists and AB judges must first determine the standard of review they are to adopt. A more deferential standard will increase the range of activities that the panel or AB will find permissible, while a more stringent standard will narrow that range. With the exception of the Anti-Dumping Agreement, however, neither the Dispute Settlement Understanding nor the specific WTO Agreements themselves provide much guidance regarding the standard of review that should be applied. Article 11, the key provision in the DSU, leaves a great deal to be worked out in litigation. Identifying the appropriate standard of review requires a determination as to whether the authority to approve certain decisions lies with the Member State or the judicial organs of the WTO. A deferential standard leaves that authority substantially with the state, while a de novo standard gives the panel that authority. This paper provides an analysis of the costs and benefits associated with more or less stringent standards of review. It argues that WTO-review is desirable primarily because panels and the AB are able to approach disputed issues without bias. The states involved in a dispute, in contrast, have an incentive to view both facts and law in a way that suits their own objectives. Panels and the AB, however, are poorly positioned, relative to states, to assess the legal, cultural, economic, and political context within states. This inevitability means that, in some cases, it is wise to leave greater discretion to the states. The different abilities of Member States and the judicial organs of the WTO allow us to develop a sense of when the standard of review should be more or less deferential. Where a lack of bias is particularly important and where the issues involved are ones in which a panel can be expected to have great expertise, a more stringent standard of review would be appropriate. Where, on the other hand, a case demands detailed knowledge of events or priorities in a state, the case for a more deferential standard of review is stronger. After elaborating the above perspective on the appropriate standard of review, the paper then provides several examples of the standards that the panels and the AB should adopt, as well as examples of standards they have actually adopted. Among the disputes considered will be those implicating the SPS Agreement; the Anti-Dumping Agreement; the Safeguards Agreement; the national treatment and most-favored nation obligations; and the general exceptions contained in Article XX of the GATT.

WTO Dispute Resolution in Health and Safety Cases

The Agreement on Sanitary and Phytosanitary Measures (SPS Agreement) aims to find the right equilibrium between safeguarding each WTO Member's interest in protecting its domestic market from products that threaten the life or health of humans, animals or plants and ensuring that these threats are not abusively invoked by individual Members in order to distort international trade patterns. This Article proposes that the DSB should apply a more deferential standard of review when evaluating: (1) the level of risk a state is prepared to tolerate; (2) scientific data; and (3) the relationship between the measure at issue and the 'risk assessment' that is required by the SPS Agreement. In fact, it is advocated that the WTO Body should refuse to review these types of assessments altogether. It is asserted that the DSB should not evaluate state priorities and is inadequately qualified to make complicated scientific evaluations. Moreover, errors in this field are more costly than in others, in both political and financial terms. Nevertheless, there should still be vigorous review of state conduct in certain other respects, for instance, to determine whether state measures are arbitrary or discriminatory.

Judicial Review and the War on Terrorism

This article examines the role of the federal courts in the war on terrorism, and contrasts the different judicial roles in reviewing decisions about the conduct of war abroad and within the United States. It explains that judicial refusal to adjudicate questions concerning the initiation and conduct of the war abroad is consistent with a narrow view of judicial review and the political question doctrine. Because the Constitution allocates different war powers to the President and Congress, allowing them to shape warmaking through the interaction of these powers, there is no single, constitutionally-required process for making war that requires judicial enforcement. This view has been borne out in practice, as most recently demonstrated in the wars in Afghanistan and Iraq. The paper also reviews the role played by federal courts with regard to the domestic effects of war, particularly when the war involves American citizens as enemies or when operations occur within the territory of the United States itself. It illustrates the wartime role of judicial review by examining cases arising from the current war against the al Qaeda terrorist organization. In the context of surveillance, the federal courts have granted warrants under the Foreign Intelligence Surveillance Act (FISA) using more flexible standards than exist for a normal search warrant, to permit surveillance of terrorist suspects. With American citizens detained as enemy combatants, the courts have entertained habeas corpus petitions, but have followed a deferential standard of scrutiny for the executive branch's war making decisions. These cases show that while the courts have exercised judicial review over the consequences of the decision to go to war, they have adopted a more flexible, deferential standard of review than would apply to normal, peacetime governmental actions, in order to accommodate the imperatives of conducting war. Thus, judicial review may apply to domestic wartime measures, but in a manner that provides options to the political branches for the conduct of the war, rather than simply serving as a negative check on government action.

Updating Deference: The Court's 2001-2002 Term Sows More Confusion About Chevron

Well before the end of its second decade, Chevron doctrine is beginning to crumble. Chevron identified statutory ambiguity as the basis for applying a deferential standard of review to agency interpretations. Whatever its limitations, this principle was relatively clear. Gone were the multi-factor analyses of the pre-Chevron era. If the statute was ambiguous (a considerable battleground in itself), the court was to defer to agency authority. Put another way, a court had to find clarity in the statute in order to maintain control and avoid the limitations of the strong deference of Chevron Step 2. This relatively clear delineation of authority began to blur over the last few years. First, Christensen v. Harris County confirmed that mere interpretive statements are not entitled to Chevron deference, only to respect. More important, U.S. v. Mead injected considerable uncertainty into Chevron analysis by holding that the availability of Chevron deference is a matter of legislative intent, to be determined, as Justice Scalia put it in dissent, by considering 'the totality of the circumstances.' This article examines the development of Chevron doctrine during the Court's 2001-2002 term. Based largely upon Barnhart v. Walton and Utah v. Evans, Professor Jordan argues that the Court appears to be returning to its prior use of a multi-factor test to determine whether Chevron deference is available in a particular case. Some factors used by the Court seem relevant to a determination of whether Congress intended to delegate the particular decision to the agency. This would, at least, be consistent with the delegation theory that underlies Chevron doctrine. Other factors, however, do not appear relevant to whether Congress intended a delegation. They are comparable to the factors that have long been relevant under Skidmore analysis, which is a matter of respect, not delegation. Professor Jordan also discerns a trend away from Chevron analysis as a distinct form of deference. He argues that statements in Utah v. Evans and Edelman v. Lynchburg College, on particular, suggest that a majority of the Court may no longer recognize Chevron's clear delineation between administrative and judicial authority. If Chevron represents only 'an additional, separate legal reason for deferring to certain agency determinations' it may devolve into merely another justification for a judicial decision, rather than a requirement to respect agency authority.

Novel Constitutional Claims: Rent Control, Means-Ends Tests, and the Takings Clause

Many commentators have criticized the due process roots of the substantially advance test, a means-ends test, of current takings jurisprudence. This Note revisits the issue in the context of rent control in Santa Monica Beach, Ltd. v. Superior Court of Los Angeles. Employing the means-ends test with deference to government actions, the Santa Monica Beach majority concludes that Santa Monica's rent control program does not violate the Takings Clause. Several dissenters, applying a less deferential standard of review in takings claims, would have found that a taking had occurred. This Note argues that the majority reached the right conclusion but erred by applying a means-ends test in its just compensation analysis. Such a test is doctrinally inconsistent with takings jurisprudence and potentially expands government liability more than is constitutionally required. Ultimately, as the concurring opinion suggests, the propriety of a means-ends test in the analysis of takings claims must be resolved by the United States Supreme Court, whose recent takings decisions suggest that a means-ends test should not be part of just compensation analysis. This Note further argues that, although rent control may be invalid if it violates a few specific protections, it should as a general matter withstand constitutional scrutiny.