A Theoretical Book but a Practical Approach

Over the next couple of weeks, I am going to blog occasionally about my new book, A Theory of Deference in Administrative Law:Basis, Application and Scope. For my first post, I thought I would start with something that does not really appear in the book at all: a brief overview of the approach I urge. Despite the daunting title, what I actually propose is, in my view, quite simple. I have drawn on Canadian cases to provide examples, solely because they feature in an article I am currently revising, which will shortly appear in the McGill Law Journal; I hope to post it on SSRN by the end of this week. In principle, this approach is applicable in any common law jurisdiction where there is judicial review of administrative action.

Of Tongues and Teeth: Sliding Scales in Judicial Review

The UK Supreme Court's decision of last week in Humphreys v Revenue Commissioners puts me to thinking about sliding scales. These are quite common in public law. At base, the idea is that greater scrutiny will be paid to decisions (or statutory provisions) in some circumstances, and less in others.