Plan B: A Theory of Judicial Review

26 Pages Posted: 22 Nov 2017

See all articles by Adam Perry

Adam Perry

University of Oxford - Faculty of Law

Date Written: November 22, 2017

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.

Keywords: Judicial Review, Administrative Law, Discretion, Legitimate Expectations, Legal Theory, Governance

Suggested Citation

Perry, Adam, Plan B: A Theory of Judicial Review (November 22, 2017). Oxford Legal Studies Research Paper No. 66/2017. Available at SSRN: https://ssrn.com/abstract=3075886 or http://dx.doi.org/10.2139/ssrn.3075886

Adam Perry (Contact Author)

University of Oxford - Faculty of Law ( email )

St Cross Building
St Cross Road
Oxford, OX1 3UL
United Kingdom

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