Public Law Adjudication Research Articles

Judicial review as a quasi-administrative jurisdiction

This article challenges the idea that judicial review is purely judicial and adversarial in nature. Instead, I argue that recent doctrinal and remedial changes to judicial review suggest that courts hold a quasi-administrative jurisdiction. By a quasi-administrative jurisdiction, I mean one that prospectively, and retrospectively, aids and advises on the execution of public administration. For example, the Federal Court in Canada (Citizenship and Immigration) v Mason suggested that federal tribunals should start using the advisory reference procedure found in section 18.3(1) of the 1985 Federal Courts Act to resolve ‘dueling administrative interpretations’ of their home statutes. Canadian courts have also started to remit cases back to administrative decision makers with specific instructions explaining how they are to proceed upon redetermination, thereby structuring and advising on the proper exercise of discretion. The existence of these quasi-administrative remedies requires us to rethink Lon Fuller’s contention that the form of adjudication is inherently bilateral, adversarial, and retrospective. Fuller’s contention was based on the claim that arguments in court are ordinarily presented in the form of claims of right in the disputant’s favour. However, I argue that, in public law adjudication, arguments are presented in the form of claims of legitimate authority in the public interest. This establishes judicial review on what I term a multilateral, collaborative, and prospective form of adjudication. This form suggests that the court is in fact suited to exercising quasi-administrative functions.

Rule-of-Law in International Trade and Investments? Between Multilevel Arbitration, Adjudication and ‘Judicial Overreach’

Arbitration and adjudication aim at protecting rule-of-law, which was a life-long concern for Prof. Giorgio Bernini. The United Nations (UN) have defined ‘rule of law at national and international levels’ as ‘a principle of governance in which all persons, institutions and entities, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with internationally recognized human rights’. Such ‘rule of law’ has emerged in worldwide trade and investment law only since the 1990s with the ‘judicialization’ of GATT/WTO law and investor-state arbitration (ISA). Both the World Trade Organization (WTO) adjudication and ISA are today challenged: The power-oriented blockage of Appellate Body (AB) nominations by the USA has rendered the WTO AB dysfunctional; it re-introduced power-politics into the WTO dispute settlement system, limited by voluntary ‘interim appellate arbitration’. ISA is rejected by some developing countries and inside the European Union as a threat to democratic constitutionalism. This contribution discusses these dialectic developments, i.e. ISA reforms aimed at strengthening ‘public law adjudication’ inside and beyond the European Union; the WTO appellate court system being transformed into voluntary arbitration in response to alleged ‘judicial overreach’; and multilevel judicial cooperation inside the EU, where the German Constitutional Court has - for the first time since the beginning of European economic integration in the 1950s - refused complying with a judgment of the European Court of Justice (CJEU) on the ground that the CJEU and the European Central Bank exceeded their limited powers ‘arbitrarily’ due to their insufficient ‘proportionality justification’ of encroachment on national economic and fiscal policy powers. How can rule-of-law, constitutional and ‘deliberative democracy’ and judicial comity be protected in multilevel, judicial cooperation among national and international courts?

Public law adjudication, international uniformity and the foreign act of state doctrine

Should courts, when applying foreign law, assess the validity or legality of foreign legislative or executive acts therein? The foreign act of state doctrine answers that question in the negative, but is often criticised as lacking a sound theoretical basis. This article argues, however, that the doctrine remains defensible if reconceptualised as a rule of private international law, which furthers the modest goal of international uniformity within the choice-of-law process. Assessing the validity or legality of foreign legislative and executive acts necessarily requires courts to address questions of foreign public law. Given the fact-specific and flexible nature of public law adjudication, courts cannot answer these questions, and thus cannot carry out such assessments, in a manner that loyally applies foreign law. The doctrine, then, makes the best of a bad situation, by sidestepping that problem with a clear rule of refusal which, if consistently applied, furthers international uniformity.

Judicial Review Evidence in the Era of the Digital State

Automated decision-making (ADM) in the public sector creates a wide range of issues that require public law analysis. A precondition of such analysis is the existential question of whether mechanisms for enforcing public law norms will continue to be effective in the era of the digital state. This article considers one institutional manifestation of that fundamental question: how public law errors in ADM systems are evidenced in judicial review proceedings. Our analysis of the nature of proving error in ADM systems reveals that this emergent mode of administration will likely have a range of impacts on contemporary judicial review evidence practices — we identify seven potential effects. This exploration also exposes how current scholarship is operating on a deficient account of the role of evidence in public law adjudication. In this sense, our thesis reveals how advancements in digital government expose the frailties and limitations of our existing understanding of public law.

Taxonomy and Public Law

This paper (i) identifies the reasons for the general absence of legal taxonomy in public law scholarship; (ii) argues that legal taxonomy and taxonomic debate is vital to the principled development of public law and rigorous legal analysis, and is of acute importance today given trends towards open-ended balancing in public law adjudication which threaten to radically undermine the rational ordering of the legal system; and (iii) takes the first steps towards developing a map of English public law fields. As to (i) the reasons for the absence of taxonomic work in public law include that the very notion of public law was long unknown to English law and is steeped in theoretical disagreement; that modern legal taxonomers have followed their Roman forebears in focusing on private law; and that contemporary trends in legal scholarship are away from doctrinal work, and particularly doctrinal scholarship that looks across different fields of law. As to (ii) legal categorization enhances our understanding of the law, and facilitates right answers to legal questions, rigorous and complete legal analysis, and rational and coherent legal development. Legal taxonomy promotes formal rule of law principles whereas approaches that eschew categorization are likely to radically undermine those principles. Legal scholars are uniquely well-placed to undertake analytical doctrinal work, including legal taxonomy, and such work therefore offers an important avenue for legal scholars to make a distinctive contribution to knowledge, and the legal system. As to (iii) the paper takes the first steps towards developing a map of different fields. The taxonomy does not take the division between public law and private law as its starting point, placing no normative weight on that putative divide. Rather it seeks to simply categorize different fields of law according to their primary functions. In order to illustrate the taxonomic method, and to begin the process of legal categorization, the paper identifies and explains two distinct categories: (1) the law relating to regulation of public power in the public interest; and (2) the law relating to protection and vindication of basic individual rights. These different fields of law are each characterized by distinctive normative concerns and perform discrete and distinctly valuable functions. Different rules, principles, concepts and methods characterize each field, these differences being explicable and normatively justified by reference to the different functions that each field performs. Having taken the first steps towards legal categorization the paper then proceeds to demonstrate how identification of discrete fields has a bearing on analysis of contemporary legal issues, examining the question of whether the proportionality method developed in human rights law ought to be read across to the common law of judicial review. The paper concludes that without good legal taxonomy and vigorous taxonomic debate, complete, nuanced, and rigorous legal analysis may be impossible.

A Case for an International Investment Court

The article elaborates on the lack of objective guarantees of independence and impartiality in the existing system of investment treaty arbitration. This founds a case for an international investment court to replace the existing system. The argument proceeds in three steps: (1) investment treaty arbitration is uniquely a form of public law adjudication, constituted at the international level; (2) as constituted it does not satisfy standards of independence and impartiality in public law adjudication; and (3) various reasons that might be offered to justify this failing are unsatisfactory in light of the importance of these standards. For this reason, states should be encouraged to establish an international investment court in accordance with well-known principles of judicial decision-making. Above all, alternatives to the existing system should be measured against the criteria that typically apply in public law, especially the related principles of openness and independence. Absent these criteria being met, one does not have a system that depoliticizes disputes and subjects them to the rule of law, or that warrants the utmost respect of all parties, above all developing states.

Sneaking Through the Backdoor -- Reflections on Public Interest in International Investment Arbitration

We are becoming more and more familiar with a simple but seemingly convincible narrative of international investment law: It is powerful – it bestows non-State actors with international rights that bite, it provides for rather effective mechanisms of international adjudication and enforcement – but it neglects the public interest.1 Whether or not this is a laudable pattern is much disputed and for the sake of this contribution I will leave it at that.2 The oddity that international investment arbitration as well as Bilateral Investment Treaties (BITs)3 do not pay much attention to public interest concerns remains noteworthy nonetheless. As Gus van Harten4 has argued so forcefully, international investment arbitration exhibits most traits which characterize public law adjudication – above all, judicial control of the exercise of public authority and (public law) remedies for the abuse of such authority in the form of effectively enforceable damages.5 Hence, a public law (adjudication) system that does not pay much attention to public interest appears a strange fact. However, a widespread consensus does seem to exist that this is actually a fact.6 As the title suggests, I want to challenge that. My conclusion from the analysis of selected investment arbitration case law will be the following: While on the surface, investment tribunals reject or even refuse to consider public law issues on the merits, those arguments reappear where it actually counts – on the level of compensation and damages. Tribunals do not grant much prominence to public interest considerations and arguments when discussing and measuring the amount of damages; in fact they hardly even mention them. Nevertheless, I will argue that by setting extremely high standards or otherwise considerably lowering the amount of damages or compensation, the arbitrators implicitly take strong account of the public interest at hand. …

The Regionalisation of Judicial Review: Constitutional Authority, Access to Justice and Specialisation of Legal Services in Public Law

Since April 2009 judicial reviews may be dealt with at regional centres and in Cardiff. This change significantly relaxed the hitherto highly centralised system of judicial review in England and Wales. The main aims were to improve access to public law redress by enabling cases to be listed and heard at the most appropriate regional location. Despite recognition of the need to improve regional access, fears exist that this reform will threaten the standing and authority of judicial review in this jurisdiction; that it will contribute to a fragmentation of judicial review and, in the regions, reduce the quality of public law adjudication, legal advice and representation. Drawing on an empirical study on the regional use of judicial review, this paper assesses these matters and considers the early effects of regionalisation on access to judicial review and the development of regional markets for legal services in public law.

Making Social Rights Conditional: Lessons from India

Recent years have witnessed important advancements in the discussion on social rights. The South African experience with social rights has revealed how such rights can be protected without providing for an individualized remedy. Comparative constitutional lawyers now debate the promise of the South African approach, and the possibility of weak-form judicial review in social rights cases. This Article considers the Indian experience with social rights, and explains how it exhibits a new form of social rights adjudication. This is the adjudication of a conditional social right; an approach that displays a rare private law model of public law adjudication. This Article studies the nature and significance of this heretofore ignored adjudicatory approach, and contrasts it with, what is called, the systemic social rights approach. The conditional social rights thesis has important implications for the present debate on social rights adjudication, and presents an account of the Indian Supreme Court that is truer than those we presently encounter.

Making social rights conditional: Lessons from India

Recent years have witnessed important advancements in the discussion on social rights. The South African experience with social rights has revealed how such rights can be protected without providing for an individualized remedy. Comparative constitutional lawyers now debate the promise of the South African approach, and the possibility of weak-form judicial review in social rights cases. This article considers the Indian experience with social rights, and explains how it exhibits a new form of social rights adjudication. This is the adjudication of a conditional social right; an approach that displays a rare private law model of public law adjudication. This article studies the nature and significance of this heretofore ignored adjudicatory approach, and contrasts it with, what is termed as, the systemic social rights approach. The conditional social rights thesis has important implications for the present debate on social rights adjudication, and presents an account of the Indian Supreme Court that is truer than those we presently encounter.

Institutional Approaches to Judicial Restraint

This article addresses the pressing issue of what process courts should use to identify those questions whose resolution lies beyond their appropriate capacity and legitimacy. The search for such a process is a basic constitutional problem that has defied a clear answer for well over a hundred years. The chequered history of earlier attempts illustrates why commentators have once again begun to gravitate towards institutional approaches. The general features of institutional approaches include emphasis on uncertainty, judicial fallibility, systemic impact, collaboration between branches of government and incrementalism in judging. These features, however, are relied upon in support of two conflicting views of the role of judges in public law adjudication. One is restrictive, and advocates sharp limitations to the ambit of judicial review. The other is contextual, and, in stark contrast, it proposes to expand the ambit of review in reliance on the idea of using principles of restraint to structure the exercise of judicial discretion. While this article does not take sides between them, it nonetheless seeks to refine the contextual institutional approach by outlining a general framework for reasoning with principles of restraint, and by addressing some of the key difficulties such a reasoning process would face.

Judicial Supervision of NAFTA Chapter 11 Arbitration: Public or Private Law?

THE NAFTA investment chapter, Chapter 11, relies on an individualized regime of enforcement for violations of the treaty's investment standards.1 A NAFTA-based foreign investor may initiate a claim directly under Chapter 11 for compensation for losses caused to the investor by a NAFTA state's breach of the rules. The claim is submitted to an arbitration tribunal constituted under the rules of either the Additional Facility of the International Centre for the Settlement of Investment Disputes (ICSID) or the United Nations Commission on International Trade Law (UNCITRAL).2 If a Chapter 11 tribunal concludes that the NAFTA host state violated the relevant treaty standards, the tribunal may award damages to the investor.3 The award is given the force of domestic law through existing structures of international commercial arbitration – represented primarily by the New York Convention – which adopt the principle of judicial deference to arbitration tribunals.4 A Chapter 11 award is not the same as a typical commercial arbitration award arising from a dispute between private parties. At its root, the authority for Chapter 11 arbitration comes from the consent of state parties to NAFTA, not from a contract. Thus, the consent of one of the disputing parties in a Chapter 11 arbitration – the host state – is made via an instrument of public international law. Moreover, the general effect of Chapter 11, like bilateral investment treaties, is to regulate host states' exercise of public authority in relation to foreign investors. In this regard, NAFTA standards could be viewed as analogous to rules of domestic public law that protect individuals by limiting state authority, although in the international sphere. On the other hand, Chapter 11 imports rules and structures of international commercial arbitration into investor-state dispute resolution. As such, the arbitration of a dispute under Chapter 11 closely resembles classical commercial arbitration between private parties. This contradiction in the public and private law aspects of Chapter 11 reveals a basic tension in investor-state arbitration under modern investment treaties. Is investor-state arbitration more like public law adjudication or commercial arbitration? Or is it a hybrid, and if so should public or private law principles take precedence in a particular circumstance?

Judicial Supervision of NAFTA Chapter 11 Arbitration: Public or Private Law

The paper examines investor-state arbitration under NAFTA Chapter 11 and argues that it is more akin to public law adjudication than to commercial arbitration.

Standing under the Human Rights Act 1998: Theories of Rights Enforcement & the Nature of Public Law Adjudication

The Human Rights Act enables applicants in judicial review and other legal proceedings to complain that a public authority has violated a Convention right, but only if they are “victims” of that violation. The victim standing test was adopted from the Strasbourg institutions without any consideration being given in Parliament to the appropriateness of such a test in the domestic context. It is argued that the suitability of a particular standing rule for a given jurisdiction cannot properly be evaluated until a theory explaining the juristic function of standing rules has been identified and articulated. Two theoretical aspects of standing rules in public law cases are suggested here, in order to provide a framework in which to assess the appropriateness of the victim test for judicial review cases raising Human Rights Act arguments.

Constitutions, Statutes, and the Theory of Efficient Adjudication

Next article No AccessConstitutions, Statutes, and the Theory of Efficient AdjudicationFrank I. MichelmanFrank I. Michelman Search for more articles by this author PDFPDF PLUS Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by The Journal of Legal Studies Volume 9, Number 3Jun., 1980 Sponsored by The University of Chicago Law School Article DOIhttps://doi.org/10.1086/467649 Views: 8Total views on this site Citations: 9Citations are reported from Crossref PDF download Crossref reports the following articles citing this article:ELODIE BERTRAND ‘The fugitive’: The figure of the judge in Coase's economics, Journal of Institutional Economics 11, no.22 (Oct 2014): 413–435.https://doi.org/10.1017/S1744137414000460Eli Salzberger The Rule of Law Under Extreme Conditions and International Law: A Law and Economics Perspective, SSRN Electronic Journal (Jan 2014).https://doi.org/10.2139/ssrn.2508846Benito Arruñada, Veneta Andonova Market Institutions and Judicial Rulemaking, (Jan 2008): 229–250.https://doi.org/10.1007/978-3-540-69305-5_11Benito Arruñada, Veneta Andonova Market Institutions and Judicial Rulemaking, SSRN Electronic Journal (Jan 2004).https://doi.org/10.2139/ssrn.849366Jürgen G. Backhaus Efficient Statute Law, (Jan 2017): 682–686.https://doi.org/10.1007/978-1-349-74173-1_131Scott Shapiro, Edward F. McClennen Law-and-Economics from a Philosophical Perspective, (Jan 2017): 1118–1123.https://doi.org/10.1007/978-1-349-74173-1_212Juergen Backhaus Public Policy Toward Corporate Structures: Two Chicago Approaches, Journal of Economic Issues 19, no.22 (Jan 2016): 365–373.https://doi.org/10.1080/00213624.1985.11504377A.I. Ogus Social costs in a private law setting, International Review of Law and Economics 3, no.11 (Jun 1983): 27–44.https://doi.org/10.1016/0144-8188(93)90044-6Benito Arruñada, Veneta Andonova Market Institutions and Judicial Rulemaking, (): 229–250.https://doi.org/10.1007/0-387-25092-1_11