New Draft Paper: Plan B: A Theory of Judicial Review

I’m an administrative law scholar, but I often suffer from private law envy. In private law, I see lots of doctrinally-oriented theory. I don’t mean theories of this or that doctrine. (There are those, too, of course.) I mean theories of whole areas of law: tort law, contract law, and the law of unjust enrichment. I mean promissory theories of contract law, corrective justice-based theories of tort law, and the like. I’m not saying these theories succeed. For all I know they don’t. It’s the ambition that impresses me, because in administrative law, things could hardly be more different. There are articles proposing theoretical accounts of specific doctrines: legitimate expectations, say, or error of law. There is the endless, exhausted ultra vires debate. And that’s about it, theory wise. I’m not sure why this is. Maybe it’s that administrative law is a relatively young area. Maybe public law scholars are preoccupied with devolution, human rights, and now Brexit. In any case, there’s a gap, and I want to help fill it.

In a new article I outline a theory of the most significant part of administrative law – the law of judicial review. Here’s the abstract:

There is no general theory of the grounds of judicial review (e.g., the rule against bias, the doctrine of legitimate expectations, unreasonableness). Here I try to fill the gap. My theory draws on ideas from the philosophy of law and the philosophy of action, but it’s a simple theory. Officials make decisions for the community. Their decisions are subject to requirements of instrumental rationality. Ideally, officials would figure out for themselves how to live up to these requirements. Because officials aren’t perfect, the law also has “Plan B”, which is for judges to ensure that officials do what rationality requires of them. The grounds of judicial review are simply the grounds on which it’s rational for officials to reconsider, retain, suspend, or apply their decisions. The “Plan B theory”, as I call it, doesn’t account for every detail of judicial review. Even so, the theory is powerful, parsimonious, fruitful, and sharply at odds with almost everything else written about judicial review.

You can download the paper here.

Comments and suggestions, no matter how small, are very welcome!

New Draft Article: Judging Constitutional Conventions

I have a new draft article about constitutional conventions, co-authored with Farrah Ahmed (Melbourne Law School) and Richard Albert (Boston College Law School). The article is about how courts can, do, and should engage with constitutional conventions. Here’s the abstract:

The study of constitutional conventions is anchored in an assumption that has so far remained unchallenged: Commonwealth courts will recognize and employ conventions but never enforce them. We show in this Article that the dominant view today is doubly mistaken: there is no such shared “Commonwealth approach” to the treatment of constitutional conventions nor do Commonwealth courts refrain from enforcing conventions. Drawing from Canada, India and the United Kingdom, we disrupt the foundations of the scholarly understanding of conventions by demonstrating that Commonwealth courts have recognized, employed and indeed also enforced conventions. Beyond this new discovery, we make the normative claim that Commonwealth courts sometimes should enforce conventions, an additional contrast between the dominant view and ours. We argue that courts should act as executors of the will and judgment of constitutional actors, and limit themselves to enforcing only power-shifting conventions, which transfer power from those who have legal power to those who can legitimately wield it. This new role of an executor court brings clarity, stability and predictability to the exercise of official powers that are rooted in constitutional convention rather than constitutional law.

Download the SSRN version of the article here.

What’s so great about flexible policies?

If there were ever a prize for “least examined ground of judicial review”, I would nominate the flexibility rule. The flexibility rule says that administrative policies must be flexible not rigid. The rule is nearly a century old. It’s part of the law of judicial review in England and Wales, Canada, Australia, New Zealand, and many other common law jurisdictions. It’s invoked in case after case. And yet the rule has received hardly any serious scrutiny. Judges rarely question it. Academics rarely write about it.

This neglect extends to the rule’s justification. Take the case of British Oxygen Co v Minister of Technology. The Board of Trade had a discretionary power to make grants for equipment purchases. To manage all the applications it received, the Board made a policy not to make grants for purchases of less than £25. British Oxygen had purchased a lot of oxygen cylinders for £20. The company didn’t quite fit under the policy, but it applied for a grant anyway. The Board refused, and the company went to court, arguing that the Board hadn’t taken into account the particulars of its case. The House of Lords ultimately sided with the Board. But it did so because it believed that the Board had ‘carefully considered’ the company’s application. Had the Board’s policy been rigid, British Oxygen would have won.

British Oxygen is a famous case. It’s probably the leading case on the flexibility rule. Yet the House of Lords never explains the rationale for the rule. So I wonder: what’s so great about flexibility? What’s so terrible about rigidity? What, if anything, is to be said for the flexibility rule? Continue reading

New Draft Paper: Government Mercy

I’ve been working on a series of papers about mercy. My latest is a discussion of when the government acts mercifully, if indeed it ever does.

Here’s the abstract:

A pardon is an act of mercy according to the law, but is a pardon mercy in an ordinary or genuine sense? What distinguishes a pardon from a lenient judicial sentence, which is not mercy by the law’s lights? These are questions about what mercy as it is understood in law has to do with mercy as it is understood outside of law, and about who in government acts mercifully and when, if indeed anyone in government ever does. Here I propose a general analysis of mercy, then bring that analysis to bear on government action. Three features of my analysis are noteworthy. First, almost all existing analyses say that mercy is unconstrained in a normative sense, but I argue that mercy is unconstrained in the way that arbitrary power is unconstrained. Second, although it’s often assumed that mercy must be motivated by compassion, I show that mercy only requires acting with the intention to benefit the recipient. Third, my analysis says that mercy requires the giver of mercy to overcome a motivation to treat the recipient harshly. Given this analysis, few government acts are merciful, but pardon is an institutional approximation or analog of mercy.

Read the full paper here.

The paper is a draft, and comments and suggestions, no matter how small, are very welcome!

New Paper in the CLJ: The Flexibility Rule in Administrative Law

I’m pleased to say that I have an article just out in the Cambridge Law Journal: ‘The Flexibility Rule in Administrative Law’. I hope to put up a longer post summarising the article soon, but for now, here’s the abstract:

Administrative officials are permitted to have policies as to the exercise of their discretionary powers, but those policies must be flexible, not rigid. The “flexibility rule”, as I call it here, is nearly a century old. Over time, it has become part of the furniture of judicial review: often used, rarely examined. That neglect has led to confusion, on display in recent cases. In this article I try to put the flexibility rule back on a sound footing. I argue, first, that the flexibility rule requires authorities to treat policies merely as rules of thumb. Second, the primary justification for the flexibility rule is neither legislative intent (as courts have said), nor the avoidance of error (as commentators tend to assume); it is the value of participation. Third, and as a result, the flexibility rule ought to apply to policies governing the use of prerogative and other non-statutory powers, as well as to policies governing the use of statutory powers.

The published version of the paper is here. There’s a draft version here. Comments and suggestions are very welcome!

New Paper in the OJLS: Constitutional Statutes

Farrah Ahmed and I have a new paper out in the Oxford Journal of Legal Studies: ‘Constitutional Statutes’.

This is our second paper on constitutional statutes. Back in 2012, in BH v Lord Advocate, the Supreme Court suggested that constitutional statutes could only be repealed expressly, not by implication. In 2015, Farrah and I published a paper in CLJ, ‘The Quasi-Entrenchment of Constitutional Statutes’ (published | draft), criticising the notion that judges can, on their own initiative, immunise statutes from implied repeal.

That first paper was mainly critical and negative. In this new paper, Farrah and I focus on the positive. We set out a definition of a constitutional statute. We also say how courts should (as opposed to shouldn’t) treat constitutional statutes. Here’s the abstract:

In recent years, British courts have treated constitutional statutes differently from ordinary statutes. This article sets outs to explain: (i) how courts have treated constitutional statutes differently from ordinary statutes; (ii) what a constitutional statute is; and (iii) why constitutional statutes should be treated differently from ordinary statutes. Courts have made it harder for ordinary statutes to repeal constitutional statutes by implication, and easier for constitutional statutes to repeal ordinary statutes by implication. A constitutional statute is a statute which regulates state institutions, and which possesses importance of a particular type that we describe. The nature of a constitutional statute largely—but not entirely—justifies the special treatment they have been given. These conclusions have wider implications, including for proposals to codify the British constitution.

Here’s the paper: published | draft.


Standing and Civic Virtue

Here’s a puzzle about standing. Suppose you’re a resident of, say, London. You love all things herpetological. You’re even the secretary of the local Herpetological Society (a real thing, by the way). You hear that the local council plans to build a power plant on public land – land which also happens to be one of the few remaining habitats of the endangered smooth snake (also a real thing). Incensed at the threat to the environment, and after duly trying to get the council to change its mind, you seek leave to apply for judicial review of the decision. To succeed, you’ll need to show you have “standing”. The test for standing in England and Wales is a “sufficient interest” in the matter to which the application relates. Other common law jurisdictions have similar tests.

How will a court decide whether you have a sufficient interest in the matter? Continue reading