The Judge And The Proportionate Use Of Discretion

This book examines different legal systems and analyses how the judge in each of them performs a meaningful review of the proportional use of discretionary powers by public bodies. Although the proportionality test is not equally deep-rooted in the literature and case-law of France, Germany, the Netherlands and the United Kingdom, this principle has assumed an increasing importance partly due to the influence of the European Court of Justice and European Court of Human Rights. In the United States, different standards of judicial review are applied to review ‘arbitrary and capricious’ agency discretion. However, do US judges achieve a similar result to the proportionality or reasonableness test? Drawing together a selection of key experts in the field, this book analyses the principle of proportionality in the judicial review of administrative decisions from different perspectives. The principle is first examined in the context of recent developments in the literature and case-law, including the inevitable EU influence, then light shall be shed on the meaning of this principle in the specific case-law of the European Court of Justice and European Court of Human Rights. Finally, the authors go on to explore the ways in which US judges consciously ‘sanction’ the ‘disproportionate’ and/or unreasonable’ use of agency discretion. In the legal systems where the proportionality test plays a very limited role, Ranchordás and de Waard also try to clarify why this is the case and look at what alternative solutions have been found. This book will be of great interest to scholars of public and administrative law, and EU law.

This book examines different legal systems and analyses how the judge in each of them performs a meaningful review of the proportional use of discretionary powers by public bodies. Although the proportionality test is not equally deep-rooted in the literature and case-law of France, Germany, the Netherlands and the United Kingdom, this principle has assumed an increasing importance partly due to the influence of the European Court of Justice and European Court of Human Rights. In the United States, different standards of judicial review are applied to review ‘arbitrary and capricious’ agency discretion. However, do US judges achieve a similar result to the proportionality or reasonableness test? Drawing together a selection of key experts in the field, this book analyses the principle of proportionality in the judicial review of administrative decisions from different perspectives. The principle is first examined in the context of recent developments in the literature and case-law, including the inevitable EU influence, then light shall be shed on the meaning of this principle in the specific case-law of the European Court of Justice and European Court of Human Rights. Finally, the authors go on to explore the ways in which US judges consciously ‘sanction’ the ‘disproportionate’ and/or unreasonable’ use of agency discretion. In the legal systems where the proportionality test plays a very limited role, Ranchordás and de Waard also try to clarify why this is the case and look at what alternative solutions have been found. This book will be of great interest to scholars of public and administrative law, and EU law.

Examines and measures the extent to which statutory language affects judicial behavior. How does the language of legislative statutes affect judicial behavior? Scholars of the judiciary have rarely studied this question despite statutes being, theoretically, the primary opportunity for legislatures to ensure that those individuals who interpret the law will follow their preferences. In Checking the Courts, Kirk A. Randazzo and Richard W. Waterman offer a model that integrates ideological and legal factors through an empirical measure of statutory discretion. The model is tested across multiple judicial institutions, at both the federal and state levels, and reveals that judges are influenced by the levels of discretion afforded in the legislative statutes. In those cases where lawmakers have clear policy preferences, legislation encourages judges to strictly interpret the plain meaning of the law. Conversely, if policy preferences are unclear, legislation leaves open the possibility that judges will make decisions based on their own ideological policy preferences. Checking the Courts thus provides us with a better understanding of the dynamic interplay between law and ideology.

Examining general principles of law provides one of the most instructive examples of the intersection between EU law and comparative law. This collection draws on the expertise of high-profile and distinguished scholars to provide a critical examination of this interaction. It shows how general principles of EU law need to be responsive to national laws. In addition, it is clear that the laws of the Member States have no choice but to be responsive to the general principles which are developed through EU law. Viewed through the perspective of proportionality, legal certainty, and fundamental rights, the dynamic relationship between the ingenuity of the Court of Justice, the legislative process and the process of Treaty revision is comprehensively illustrated.

Global regulatory standards are emerging from the environmental and health jurisprudence of the International Court of Justice, the World Trade Organization, under the United Nations Convention on the Law of the Sea, and investor-state dispute settlement. Most prominent are the three standards of regulatory coherence, due regard for the rights of others, and due diligence in the prevention of harm. These global regulatory standards are a phenomenon of our times, representing a new contribution to the ordering of the relationship between domestic and international law, and a revised conception of sovereignty in an increasingly pluralistic global legal era. However, the legitimacy of the resulting 'standards-enriched' international law remains open to question. International courts and tribunals should not be the only fora in which these standards are elaborated, and many challenges and opportunities lie ahead in the ongoing development of global regulatory standards. Debate over whether regulatory coherence should go beyond reasonableness and rationality requirements and require proportionality stricto sensu in the relationship between regulatory measures and their objectives is central. Due regard, the most novel of the emerging standards, may help protect international law's legitimacy claims in the interim. Meanwhile, all actors should attend to the integration rather than the fragmentation of international law, and to changes in the status of private actors.

Explains how administrative government maintains mutual respect among citizens, legitimates administrative government under law, and supports a realistic vision of democracy.

This insightful book critically examines the phenomenon of public private partnerships through a global, theoretical, lens. It considers the reasons for merging private entities and public administration, as well as the processes and consequences of doing so. The benefits for the community as well as the radical changes in the principles and modalities of administrative activity are theorized and discussed.

What makes an argument in a law case good or bad? Can legal decisions be justified by purely rational argument or are they ultimately determined by more subjective influences? These questions are central to the study of jurisprudence, and are thoroughly and critically examined in Legal Reasoning and Legal Theory, now with a new and up-to-date foreword. Its clarity of explanation and argument make this classic legal text readily accessible to lawyers, philosophers, and any general reader interested in legal processes, human reasoning, or practical logic.