Judicial deference
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The rise of deference: The margin of appreciation and decentralized judicial review in EU free movement law Open
An institution erstwhile known for its activism, the ECJ has, in recent years, rendered a growing number of judgments marked by caution, especially when reviewing Member State acts. Through doctrines such as the margin of appreciation, the…
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When “Best Practices” Win, Employees Lose: Symbolic Compliance and Judicial Inference in Federal Equal Employment Opportunity Cases Open
This article provides a new account of employers' advantages over employees in federal employment discrimination cases. We analyze the effects of judicial deference , in which judges use institutionalized employment structures to infer non…
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Attacking Auer and Chevron Deference: A Literature Review Open
In recent years, there has been a growing call to eliminate — or at least narrow — administrative law’s judicial deference doctrines regarding agency interpretations of law. As part of the Challenging Administrative Power Symposium sponsor…
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Positive rights: Who decides? Judicial review in balance Open
Positive rights which require the state to take action are often criticized because they give rise to the justiciability problem. Courts, rather than democratic legislatures, decide upon the scope and content of the rights. This article ar…
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Health technology assessment and judicial deference to priority-setting decisions in healthcare: Quasi-experimental analysis of right-to-health litigation in Brazil Open
The constitutional right to health in Brazil has entitled patients to litigate against the government-funded national health system (SUS), claiming access to various health treatments including those excluded from the health system's benef…
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Rethinking the Two Margins of Appreciation Open
European Court of Human Rights – Subsidiarity – Margin of appreciation – Deference – Theorising the margin of appreciation based on a large case law study – The ‘systemic’ (rethought ‘structural’) element of the margin of appreciation reli…
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The “procedural turn” under the European Convention on Human Rights and presumptions of Convention compliance Open
The literature on the "procedural turn" in the case-law of the European Court of Human Rights (ECtHR) is divided on the question of whether positive inferences from due procedural diligence at the national level can go so far as to bar the…
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Omnibus Bills: Constitutional Constraints and Legislative Liberations Open
Over the past decade, the use of omnibus bills has become routine in the Parliament of Canada. Omnibus budget implementation bills have grown in size to several hundred pages and acquired their own political term with a decidedly negative …
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Rethinking Police Expertise Open
This article examines a counterintuitive phenomenon: cases where claims of police expertise do not bolster but undercut police authority in court. Assertions of unique insight, training, and experience have long provided officers with a re…
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Judicial Populism and the Weberian Judge—The Strength of Judicial Resistance Against Governmental Influence in Hungary Open
The Hungarian judiciary has reacted to the political change of recent years in a twofold way. Some judges have resisted political pressure and decided cases according to the law and their conscience, while others, showing the signs of judi…
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Science, Common Sense & Judicial Power in U.S. Courts Open
Courts routinely resolve factual disputes as an adjunct to settling legal controversies, and such fact-finding frequently involves scientific and technical evidence. It is important to ask what intellectual resources judges bring to this t…
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Political Accountability in a System of Checks and Balances: The Case of Presidential Review of Rulemaking Open
This article examines, in light of the competing Reagan-Bush and Clinton models of presidential regulatory oversight, whether “categorical separationism,” as a theory of constitutional law, promotes political accountability. The Reagan and…
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<em>Chevron</em> in the Circuit Courts Open
This Article presents findings from the most comprehensive empirical study to date on how the federal courts of appeals have applied Chevrondeference— the doctrine under which courts defer to a federal agency’s reasonable interpretation of…
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Administrative Law's Political Dynamics Open
Over thirty years ago, the Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. commanded courts to uphold federal agency interpretations of ambiguous statutes as long as those interpretations are reasonable. T…
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The Uncertain Future of Administrative Law Open
A volatile series of presidential transitions has only intensified the century-long conflict between progressive defenders and conservative critics of the administrative state. Yet neither side has adequately confronted the fact that the g…
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A preliminary framework for measuring deference in rights reasoning Open
This article proposes a methodology for measuring how deferential judicial reasoning is in human rights cases. The proposed framework ranks four strategies of exercising deference—rights definition, standard of justification, burden of jus…
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The Transmutation of Deference in Medicine: An Ethico-Legal Perspective Open
This article critically considers the question of whether an increase in legal recognition of patient autonomy culminating in the decision of the Supreme Court in Montgomery v Lanarkshire Health Board in 2015 has led to the death of defere…
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The Judicial Presumption of Police Expertise Open
This Article examines the unrecognized origins and scope of the judicial presumption of police expertise: the notion that trained officers develop insight into crime sufficiently rarefied and reliable to justify deference from courts. Poli…
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Deference and defiance in Malaysia's China policy: determinants of a dualistic diplomacy Open
When do smaller states defer to and when do they defy stronger powers? How and why? This article traces and explains the changing patterns of deference and defiance in Malaysia's China policy. There are three findings. First, deference and…
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A Spoonful of Sugar: Deference at the Court of Justice Open
This article analyses the European Court of Justice's strategic use of deference as a resilience technique in the preliminary reference procedure. It focuses on the strategic potential of using deference in two scenarios: first, when the C…
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Questioning executive supremacy in an economic state of emergency Open
This paper compares and contrasts state emergency responses to national security crises with responses deployed in a period of economic crisis. Specifically, this paper challenges the appropriateness and legitimacy of the standard emergenc…
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Public Litigation and the Concept of "Deference" in Judicial Review Open
The Constitutional Court is the highest court in all constitutional matters and thus decides appeals from other courts in disputes involving natural and juristic persons and the state, including criminal matters, if the matter is a constit…
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Statutory Interpretation, Administrative Deference, and the Law of Stare Decisis Open
This Article examines three facets of the relationship between statutory interpretation and the law of stare decisis: judicial interpretation, administrative interpretation, and interpretive methodology. In analyzing these issues, I emphas…
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Means And Ends In City Of Arlington v. FCC: Ignoring The Lawyer's Craft to Reshape the Scope of Chevron Deference Open
In last year’s term, the United States Supreme Court considered the question of the scope of Chevron deference in City of Arlington v. FCC. This article discusses how the decision is an example of the work of an activist Court. The case sh…
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Beyond the Bully Pulpit: Presidential Speech in the Courts Open
The president’s words play a unique role in American public life. No other figure speaks with the reach, range, or authority of the president. The president speaks to the entire population; about the full range of domestic and internationa…
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Administrative rationality review Open
Under the familiar rational basis test, a court must uphold a challenged statute if there is any conceivable basis to support it. Courts routinely accept speculative — even farfetched — justifications that few would describe as “rational” …
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Let presidents fail: Congressional deference to presidents as gambling on failure Open
Congress’s power of the purse is effective enough to block the implementation of a policy Congress disagrees with, especially in the case of foreign policies initiated by presidents. However, it is puzzling that congressional deference to …
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Chevronizing Around Cost-Benefit Analysis Open
The Trump administration’s efforts to weaken regulations are in tension with cost-benefit analysis, which in many cases supports those regulations or otherwise fails to support the administration’s deregulatory objectives. Rather than atte…
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Why legislatures owe deference to the courts Open
In his intriguing book, Dimitrios Kyritsis establishes the justifiability of judicial review. Under his view, the institutional duties of the Court are not parasitic on epistemic or any instrumental concerns. One of the primary institution…
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The Partiality Norm: Systematic Deference in the Office of Legal Counsel Open
This study shows that the Office of Legal Counsel does not offer "detached, apolitical legal advice" in practice. Rather, the OLC is deeply and systematically deferential to the President. The implications are grave considering the OLC's d…