The Scope and Intensity of Substantive Review: Traversing Taggart's Rainbow
Inspired by the work of Professor Michael Taggart, this collection of essays from across the common law world is concerned with two separate but related themes. First, to what extent and by what means should review on substantive grounds, such as unreasonableness, be expanded and intensified? Jowell, Elliott, and Varuhas all agree with Taggart that proportionality should not 'sweep the rainbow,' but propose different schemes for organizing and conceptualizing substantive review. Groves and Weeks, and Hoexter evaluate the state of substantive review in Australia and South Africa respectively. The second theme concerns the broader (Canadian) sense of substantive review, including the illegality grounds, and whether deference should extend to these grounds. Cane and Aronson consider the relevance and impact of different constitutional and doctrinal settings. Wilberg and Daly address questions concerning when and how deference is to operate once it is accepted as appropriate in principle. Rights-based review is discussed in a third section because it raises both of the above questions. Geiringer, Sales, and Walters examine the choices to be made in settling the approach in this area, each focusing on a different dichotomy. Taggart's work is notable for treating these various aspects of substantive review as parts of a broader whole, and for his search for an appropriate balance between judicial scrutiny and administrative autonomy across this entire area. By bringing together essays on all these topics, this volume seeks to build on that approach. (Series: Hart Studies in Comparative Public Law, Vol. 8) [Subject: Constitutional Law, Administrative Law, Comparative Law, Human Rights Law]
1301259687
The Scope and Intensity of Substantive Review: Traversing Taggart's Rainbow
Inspired by the work of Professor Michael Taggart, this collection of essays from across the common law world is concerned with two separate but related themes. First, to what extent and by what means should review on substantive grounds, such as unreasonableness, be expanded and intensified? Jowell, Elliott, and Varuhas all agree with Taggart that proportionality should not 'sweep the rainbow,' but propose different schemes for organizing and conceptualizing substantive review. Groves and Weeks, and Hoexter evaluate the state of substantive review in Australia and South Africa respectively. The second theme concerns the broader (Canadian) sense of substantive review, including the illegality grounds, and whether deference should extend to these grounds. Cane and Aronson consider the relevance and impact of different constitutional and doctrinal settings. Wilberg and Daly address questions concerning when and how deference is to operate once it is accepted as appropriate in principle. Rights-based review is discussed in a third section because it raises both of the above questions. Geiringer, Sales, and Walters examine the choices to be made in settling the approach in this area, each focusing on a different dichotomy. Taggart's work is notable for treating these various aspects of substantive review as parts of a broader whole, and for his search for an appropriate balance between judicial scrutiny and administrative autonomy across this entire area. By bringing together essays on all these topics, this volume seeks to build on that approach. (Series: Hart Studies in Comparative Public Law, Vol. 8) [Subject: Constitutional Law, Administrative Law, Comparative Law, Human Rights Law]
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The Scope and Intensity of Substantive Review: Traversing Taggart's Rainbow

The Scope and Intensity of Substantive Review: Traversing Taggart's Rainbow

The Scope and Intensity of Substantive Review: Traversing Taggart's Rainbow

The Scope and Intensity of Substantive Review: Traversing Taggart's Rainbow

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Overview

Inspired by the work of Professor Michael Taggart, this collection of essays from across the common law world is concerned with two separate but related themes. First, to what extent and by what means should review on substantive grounds, such as unreasonableness, be expanded and intensified? Jowell, Elliott, and Varuhas all agree with Taggart that proportionality should not 'sweep the rainbow,' but propose different schemes for organizing and conceptualizing substantive review. Groves and Weeks, and Hoexter evaluate the state of substantive review in Australia and South Africa respectively. The second theme concerns the broader (Canadian) sense of substantive review, including the illegality grounds, and whether deference should extend to these grounds. Cane and Aronson consider the relevance and impact of different constitutional and doctrinal settings. Wilberg and Daly address questions concerning when and how deference is to operate once it is accepted as appropriate in principle. Rights-based review is discussed in a third section because it raises both of the above questions. Geiringer, Sales, and Walters examine the choices to be made in settling the approach in this area, each focusing on a different dichotomy. Taggart's work is notable for treating these various aspects of substantive review as parts of a broader whole, and for his search for an appropriate balance between judicial scrutiny and administrative autonomy across this entire area. By bringing together essays on all these topics, this volume seeks to build on that approach. (Series: Hart Studies in Comparative Public Law, Vol. 8) [Subject: Constitutional Law, Administrative Law, Comparative Law, Human Rights Law]

Product Details

ISBN-13: 9781849464680
Publisher: Hart Publishing (UK)
Publication date: 06/18/2015
Series: Hart Studies in Comparative Public Law , #8
Pages: 444
Product dimensions: 6.10(w) x 9.30(h) x 1.30(d)

Table of Contents

Foreword v

Preface and Acknowledgements vii

List of Contributors xi

1 Introduction Mark Elliott Hanna Wilberg 1

Part A Modern Extensions of Substantive Review

2 Modern Extensions of Substantive Review: A Survey of Themes in Taggart's Work and in the Wider Literature Mark Elliott Hanna Wilberg 19

3 Proportionality and Unreasonableness: Neither Merger nor Takeover Jeffrey Jowell 41

4 From Bifurcation to Calibration: Twin-Track Deference and the Culture of Justification Mark Elliott 61

5 Against Unification Jason NE Varuhas 91

6 Substantive (Procedural) Review in Australia Matthew Groves Greg Weeks 133

7 A Rainbow of One Colour? Judicial Review on Substantive Grounds in South African Law Cora Hoexter 163

Part B Deference on Questions of Law?

8 Deference on Questions of Law: A Survey of Taggart's Contribution and Themes in the Wider Literature Hanna Wilberg Mark Elliott 197

9 Judicial Control of Administrative Interpretation in Australia and the United States Peter Cane 215

10 Should We Have a Variable Error of Law Standard? Mark Aronson 241

11 Deference on Relevance and Purpose? Wrestling with the Law/Discretion Divide Hanna Wilberg 263

12 The Struggle for Deference in Canada Paul Daly 297

Part C Rights-Based Review

13 Process and Outcome in judicial Review of Public Authority Compatibility with Human Rights: A Comparative Perspective Claudia Geiringer 329

14 Crown Powers, the Royal Prerogative and Fundamental Rights Philip Sales 361

15 Respecting Deference as Respect: Rights, Reasonableness and Proportionality in Canadian Administrative Law Mark D Walters 395

Index 423

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