The 'Comparative Study of the Theoretical Foundations of Judicial Deference' Project
Posted: 13 Dec 2017 Last revised: 29 Aug 2018
Date Written: December 11, 2017
This project, to be carried out jointly with the Post-Graduate Law Program of the University Estácio de Sá/PPGD-Unesa (with support of the Post-Graduate Administrative Justice Program of the Fluminense Federal University/PPGJA-UFF) in partnership with the Centre for American Legal Studies (School of Law at Birmingham City University), provides a comparative analysis of the laws of procedure in public law cases. The excessive litigation in administrative matters in Brazil calls for reflection on possible tension between the thoroughness of judicial review of administrative decisions in terms of the notion of a fair trial, and the parameters of judicial deference (and of closed judicial review) typical of judicial models in which the administrative decisions are issued from proceedings conducted by quasi-judicial bodies with guarantees of due process. Since Brazilian law is moving towards implementing due process in the administrative sphere (as is happening on the Latin American scene under the influence of US legal theory), two hypotheses should be examined in advance: Can excessive of litigation be avoided by raising the quality of administrative front-line decisions, resulting in greater judicial deference and thus reduced judicial review? Or is it necessary for such authorities to provide a “quasi-judicial” fair hearing (administrative adjudication) subject to judicial review, which would double the procedural costs? Will judicial deference really reduce the number of administrative disputes or will it simply shift litigation from the courts to the authorities’ internal administrative adjudication bodies? In this respect, how does judicial deference fit in with the broader constitutional foundations of administrative justice? In this context, the research objectives are (1) to identify parallels and contrasts between the theoretical approaches to judicial deference to administrative decisions (front-line decisions and adjudication decisions) in the United Kingdom, USA and Brazil; (2) to explain the variety of judicial arguments in favor of deference and to correlate them with the corresponding constitutional theories; (3) to contribute to the understanding of the theoretical foundations of judicial deference and to present recommendations for the use of such deference.
Keywords: fair trial, fair hearing, due process of law, public administrative authorities
JEL Classification: I18, K32, K33, K23, K41, I11, I28, H75, H51, N46
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