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Vol 21 No 11 Nov/Dec 2016

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The Scope and Intensity of Substantive Review: Traversing Taggart's Rainbow (eBook)

Edited by: Hanna Wilberg, Mark Elliott

ISBN13: 9781509906208
Published: June 2015
Publisher: Hart Publishing
Country of Publication: UK
Format: eBook (ePub)
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Responding to and build on the work of Professor Michael Taggart, this book brings together essays on two contrasting issues concerning the scope and intensity of substantive grounds of review.

Firstly, whether and to what extent review on substantive grounds such as unreasonableness, proportionality and substantive legitimate expectations should be expanded and intensified; and secondly, whether review on illegality grounds should ever retreat from the usual correctness standard. Fundamental rights as grounds of review raise both of these questions and a separate part is devoted to them.

Taggart's support for expansion of substantive grounds of review was of a piece with his recognition of the need for judicial restraint or deference in appropriate contexts. The latter took the form both of his ultimate opposition to proportionality as a ground for review in non-rights cases, and of his support for varying intensity review under the illegality heading. Such awareness of the bigger picture and the need for balance within it is in short supply in the literature.

This book is intended to continue Taggart's work in putting the pieces of the jigsaw back together.

Subjects:
Constitutional and Administrative Law, Judicial Review, eBooks
Contents:
1. Introduction Mark Elliott and Hanna Wilberg

Part A: Modern Extensions of Substantive Review
2. Modern Extensions of Substantive Review: A Survey of Themes in Taggart's Work and in the Wider Literature Mark Elliott and Hanna Wilberg
3. Proportionality and Unreasonableness: Neither Merger nor Takeover Jeffrey Jowell
4. From Bifurcation to Calibration: Twin-Track Deference and the Culture of Justification Mark Elliott
5. Against Unification Jason NE Varuhas
6. Substantive (Procedural) Review in Australia Matthew Groves and Greg Weeks
7. A Rainbow of One Colour? Judicial Review on Substantive Grounds in South African Law Cora Hoexter

Part B: Deference on Questions of Law?
8. Deference on Questions of Law: A Survey of Taggart's Contribution and Themes in the Wider Literature Hanna Wilberg and Mark Elliott
9. Judicial Control of Administrative Interpretation in Australia and the United States Peter Cane
10. Should We Have a Variable Error of Law Standard? Mark Aronson
11. Deference on Relevance and Purpose? Wrestling with the Law/Discretion Divide Hanna Wilberg
12. The Struggle for Deference in Canada Paul Daly Part C: Rights-Based Review
13. Process and Outcome in Judicial Review of Public Authority Compatibility with Human Rights: A Comparative Perspective Claudia Geiringer
14. Crown Powers, the Royal Prerogative and Fundamental Rights Philip Sales
15. Respecting Deference as Respect: Rights, Reasonableness and Proportionality in Canadian Administrative Law Mark D Walters

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