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!

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