Taking a 'hard look' at 'irrationality': Substantive review of administrative discretion in the US and UK supreme courts

Abstract

This article undertakes the heretofore untried task of documenting and explaining the antithetical case law of the American and UK Supreme Courts as to substantive review of administrative discretion over the past three decades. Despite sharing common legal origins and experiencing comparable aggrandisements of administrative power in the latter half of the 20th century, the two courts are now sharply divided by the standard levels of intensity and modi operandi they adopt in exercising arbitrariness and irrationality review, respectively, for instance, the UK Supreme Court has affirmed many more administrative acts than its US counterpart under both Wednesbury and anxious scrutiny review. In determining the standard intensity of substantive review with little or no guidance from statutory or human rights norms, America's and Britain's apex courts have taken their cues from the framework principles of their respective polities, as well as from the relative adequacy and efficiency of other oversight mechanisms. © The Author 2014. Published by Oxford University Press. All rights reserved.