The Orthodox Deferential Approach

Jaime Arancibia

in Judicial Review of Commercial Regulation

Published in print March 2011 | ISBN: 9780199609079
Published online May 2011 | e-ISBN: 9780191725289 | DOI:
The Orthodox Deferential Approach

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This chapter examines the deferential approach, regarded as orthodox. It is divided into two sections. The first explains the main arguments upon which this cautious approach, based on the Wednesbury case, is founded. In particular, these arguments point towards two important features of modern administration—expertise and institutional autonomy--which indicate that regulators are far better equipped than the courts to deal fairly and impartially with technical issues arising from the relevant context. Moreover, it is argued that a less strict standard of review would be consistent with the notion of regulatory effectiveness, which demands decisiveness and certainty on the part of executive bodies. The second section provides an account of the relevant cases. These cases consider different aspects of the contended order which have required the supervision of the courts: factual findings, substantive choices, and interpretation of vague or self-regulatory rules.

Keywords: judicial deference; Wednesbury; regulatory expertise; institutional autonomy; administrative efficiency

Chapter.  24438 words. 

Subjects: Constitutional and Administrative Law

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