Inspired by the work of Professor Michael Taggart, this collection of essays from across the common law world is concerned with two separate but related themes. First, to what extent and by what means should review on substantive grounds such as unreasonableness be expanded and intensified? Jowell, Elliott and Varuhas all agree with Taggart that proportionality should not `sweep the rainbow', but propose different schemes for organising and conceptualising substantive review. Groves and Weeks, and Hoexter evaluate the state of substantive review in Australia and South Africa respectively.
The second theme concerns the broader (Canadian) sense of substantive review including the illegality grounds, and whether deference should extend to these grounds. Cane and Aronson consider the relevance and impact of different constitutional and doctrinal settings. Wilberg and Daly address questions concerning when and how deference is to operate once it is accepted as appropriate in principle.
Rights-based review is discussed in a separate third part because it raises both of the above questions. Geiringer, Sales and Walters examine the choices to be made in settling the approach in this area, each focusing on a different dichotomy.
Taggart's work is notable for treating these various aspects of substantive review as parts of a broader whole, and for his search for an appropriate balance between judicial scrutiny and administrative autonomy across this entire area. By bringing together essays on all these topics, this volume seeks to build on that approach.
Hanna Wilberg is a Senior Lecturer at the University of Auckland Faculty of Law. Mark Elliott is a Reader in Public Law at the University of Cambridge.
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