Systemic Unfairness, Access to Justice, and Futility: A Framework

(2020) 40 Oxford Journal of Legal Studies (Forthcoming)

Oxford Legal Studies Research Paper No. 60/2019

39 Pages Posted: 21 Jan 2020

See all articles by Abi Adams-Prassl

Abi Adams-Prassl

University of Oxford - Department of Economics

Jeremias Adams-Prassl

University of Oxford - Faculty of Law

Date Written: January 20, 2020

Abstract

This paper develops a conceptual framework for access to justice as a ground of judicial review in English law. We identify a hitherto undertheorised strand of cases which enable courts to review policy within proper constitutional bounds: the doctrine of systemic unfairness, which focuses on risks inherent in a system as a whole. In the context of access to justice, the relevant systemic risk is one of futility: a rational litigant’s inability to vindicate a meritorious claim. Proving the required facts in the context of judicial review proceedings is not an easy task. Litigants must look beyond the realisation of harm to the mechanisms which put access to justice at risk. It is only where the combined impact or cost of system-level risk is particularly severe that a policy-level challenge will succeed on access to justice grounds.

Keywords: systemic unfairness, access to justice, judicial review, law and economics, court reform, digitalisation

JEL Classification: K00, D00

Suggested Citation

Adams-Prassl, Abi and Adams-Prassl, Jeremias, Systemic Unfairness, Access to Justice, and Futility: A Framework (January 20, 2020). (2020) 40 Oxford Journal of Legal Studies (Forthcoming), Oxford Legal Studies Research Paper No. 60/2019, Available at SSRN: https://ssrn.com/abstract=3522044

Abi Adams-Prassl

University of Oxford - Department of Economics ( email )

Mansfield Road
Oxford, Oxfordshire OX1 4AU
United Kingdom

Jeremias Adams-Prassl (Contact Author)

University of Oxford - Faculty of Law ( email )

Magdalen College
Oxford, OX1 4AU
United Kingdom

HOME PAGE: http://www.law.ox.ac.uk/people/jeremias-adams-prassl

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