Deference to the Administration in Judicial Review: Comparative Perspectives

See Dyzenhaus (1998), p. 11.

Hamilton (2001).

Ibid.

Bickel (1998).

About the role of deference as the “counter-Marbury” of the administrative state see Sunstein (1990), pp. 2071, 2074–2075.

For instance, a well known deferential practice between higher and lower courts is when higher courts reply on the fact findings of the lower courts.

For instance the deferential practice of the courts regarding the interna corporis of the law making process.

Vile (1998), p. 400.

Egeberg and Trondal (2009), p. 673.

Vile (1998), p. 401.

The guidelines sent to reporters are included in the Annex. In total, reports from the following (17) countries were received: Pedro Aberastury Associate Professor of Administrative Law; Fleur Kingham President, Land Court of Queensland, Australia; Qinwei Gao, Professor, Central University of Finance and Economics, China; Giacinto della Cananea, Professor of Administrative law and EU Administrative Law, University of Rome “Tor Vergata”, Italy; Zdenek Kühn, Associate Professor of Jurisprudence, Charles University Law School and Judge at the Supreme Administrative Court of the Czech Republic; Josef Staša, Lecturer of Administrative law, Charles University Law School, Czech Republic; Mariolina Eliantonio, Associate Professor in European Administrative Law Maastricht University, Netherlands; Olli Maenpaa Professor University of Helsinki, Finland; Cora Chan, Associate Professor HKU, Hong Kong; Margit Cohn, Henry J. and Fannie Harkavy Chair in Comparative Law, Faculty of Law, the Hebrew University of Jerusalem, Israel Norikazu Kawagishi, Professor Department of Political Science, Waseda University, Japan; Tom Barkhuysen Professor of Constitutional and Administrative law at Leiden University, the Netherlands and partner at Stibbe, Netherlands; Michiel l. Van Emmerik Associate Professor of Constitutional and Administrative law at Leiden University and deputy judge at the District Court Midden-Nederland, Netherlands; Zbigniew Kmieciak, Professor, Faculty of Law and Administration, University of Lodz, Justice of the Supreme Administrative Court, Poland; Joanna Wegner-Kowalska, PhD Faculty of Law and Administration, University of Lodz, Poland; Eugene K B Tan, Associate Professor of Law, School of Law, Singapore Management University; Henrik Wenander, Associate Professor of Public Law, Faculty of Law, Lund University, Sweden; Aytac Ozelci, Chair of Administrative Law Department, Istanbul Kultur University, Turkey; Elif Altinok Caliskan; Assistant Professor, Administrative Law Department, Istanbul Kultur University, Turkey; Sakine Nilufer Bilgin, Administrative Law Department, Istanbul Kultur University, Turkey; John C. Reitz, Edward L. Carmody Professor of Law and International Studies, University of Iowa College of Law; Bent Ole Gram Mortensen, Professor, Department of Law, University of Southern Denmark; Frederik Waage, Associate Professor, Department of Law, University of Southern Denmark.

See Bamzai (2017), p. 908.

Dunsmuir v New Brunswick 2008 SCC 9, [2008] 1 SCR 190.

Kmiec (2004), pp. 1441, 1444.

Proportionality test includes a review based on three steps: (1) whether the right limitation pursues the legitimate aim; (2) whether it is rationally connected to the aim; and (3) whether it is no more than necessary for achieving the aim. See Jackson and Tushnet (2017).

Reasonableness test, also known as Wednesbury unreasonableness is a less strict test according to which the courts ask whether the action of the administration was merely reasonable. See Associated Provincial Picture Houses v. Wednesbury Corporation [1948] 1 KB 223. For further details, see Craig (2016).

De Burca (1997), p. 561.

Allan (2011), p. 96.

Chan (2011), pp. 7, 9.

With the exception of the trial by jury.

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

Hamilton (2001).

Chan (2013), p. 598.

Under circumstances of complex science expertise it is argued that court’s review is even thicker and thus it is called “super deference”. See Jacobs (2016), pp. 49, 53.

Judicial deference is considered a controversial topic. See Kavanagh (2010), p. 222. For the concept Rule of law, there is no single definition and different authors have highlighted different aspects. For the purpose of this report, rule of law is perceived with a broad interpretation and as an essentially contested concept. See Waldron (2002), p. 137.

City of Arlington v. FCC, 133 S. Ct. 1863, 1870 (2013) at 1879.

See, for example, European Court of Human Rights 23 June 1981, NJ 1982/602 (Le Compte, Van Leuven & De Meyere v Belgium), par. 51.

See, for example: Deference and Due Process, 129 HARV. L. REV. 1890 (2016); Administrative Procedure and Judicial Restraint, Harvard Law Review Forum May, 2016 129 Harv. L. Rev. F. 338; Transatlantic Perspective on Judicial Deference in Administrative Law, Columbia Journal of European Law Spring, 2016 22 Colum. J. Eur. L. 275; Judicial Deference and Regulatory Preemption by Federal Agencies, Tulane Law Review May, 2010 84 Tul. L. Rev. 1233; Mullan (2004), p. 59; Bree (2015), p. 791; Frank and Falzon (2016), p. 135; Allan (2010), p. 41; Helen and Gavin (2011), p. 863; The Honourable Michel Bastarache (2009), p. 227; Warchuk (2016), p. 87; Cameron (2009), p. 102; Lawrence (2015), p. 35; Guy (2000–2001), p. 133; Cora (2010), p. 1.

[2008] 1 SCR 190 at paragraph 47.

http://​www.​austlii.​edu.​au/​au/​journals/​AIAdminLawF/​2013/​13.​pdf.

http://​digitalcommons.​pepperdine.​edu/​cgi/​viewcontent.​cgi?​article=​1071&​context=​naalj.