2 March 2015

Vigilance and Restraint in the Common Law of Judicial Review: Scope, Grounds, Intensity, Context

I haven't been blogging much recently - it's been rather quiet on here for a few years, sorry.

But I think I have a pretty good excuse...

I'm been working on my PhD at the London School of Economics and Political Science and submitted it for examination just before Xmas. The title is "Vigilance and Restraint in the Common Law of Judicial Review: Scope, Grounds, Intensity, Context". Here's the abstract:
The mediation of the balance between vigilance and restraint is a fundamental feature of judicial review of administrative action in the Anglo-Commonwealth. This balance is realised through the modulation of the depth of scrutiny when reviewing the decisions of ministers, public bodies and officials. While variability is ubiquitous, it takes different shapes and forms. In this thesis I identify the main approaches employed in judicial review in England, Canada, Australia and New Zealand over the last 50 years or so:
(a) scope of review, based on an array of formalistic categories which determine whether judicial intervention is permissible;
(b) grounds of review, based on a simplified and generalised set of grounds of intervention;
(c) intensity of review, based on explicit calibration of the depth of scrutiny taking into account a series of constitutional, institutional and functional factors; and
(d) contextual review, based on an unstructured (and sometimes instinctive) overall judgement about whether to intervene according to the circumstances of the case.
This thesis has three dimensions. In the doctrinal dimension, I isolate the four schemata from the case law throughout the Anglo-Commonwealth. Professor Stanley de Smith’s acclaimed judicial review textbook – particularly its changing language and format – is used to provide structure for the study. In the conceptual dimension, I identify the conceptual foundations of the schemata, exposing their commonality and differences. I use the scholarly debate about the constitutional underpinnings of judicial review to provide insight into the justifications advanced for the different approaches. In the normative dimension, I evaluate the virtues of the different schemata. The qualities of the different approaches are drawn out, using Fuller’s rule-of-law-based criteria to guide the assessment of efficacy. Overall, the grounds and intensity of review schemata generally display the most virtue when measured against these criteria.
Today, is my first day of teaching at Vic this academic year, so it marks a return of sorts (I continued to teach during my PhD, commuting back and forth in one perpetual winter!). I still have to go back to the UK in May for my viva (oral defence) and whatever happens thereafter...

But I'm looking forward to having some more time to devote to things like this blog and the current events in NZ civics and law.

2 comments:

Stephen Franks said...

When will we be able to read it Dean?

Dean Knight said...

I'll probably post a version post-viva in May.

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"


This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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