Merrill, Thomas W. --- "The Origins of American-style Judicial Review" [2010] ELECD 825; in Rose-Ackerman, Susan; Lindseth, L. Peter (eds), "Comparative Administrative Law" (Edward Elgar Publishing, 2010)

Book Title: Comparative Administrative Law

Editor(s): Rose-Ackerman, Susan; Lindseth, L. Peter

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848446359

Section: Chapter 23

Section Title: The Origins of American-style Judicial Review

Author(s): Merrill, Thomas W.

Number of pages: 26

Extract:

23 The origins of American-style judicial review
Thomas W. Merrill


American administrative law is characterized by a number of distinguishing features.
Perhaps the most unique aspect is its adoption of an appellate review model for defining
the role of courts in reviewing agency action. The model is borrowed from the under-
standings that govern the relationship between appeals courts and trial courts in civil
litigation ­ which in turn build on the relationship between judges and juries. At their
core, these understandings presuppose a division of functions grounded in the distinc-
tion between law and fact (Louis 1986). On issues of fact, the initiating institution is
understood to have superior competence, and the reviewing institution will defer to its
findings. On issues of law, the reviewing institution is understood to have superior com-
petence, and will decide the matter independently.
The appellate review model has three salient features: (1) The evidentiary record on
which the reviewing institution makes its decision is exclusively the record generated by
the initiating institution. If the reviewing institution determines that additional evidence
is critical to a proper decision, it will remand to the initiating institution for develop-
ment of a new record, rather than take evidence itself. (2) The standard of review varies
depending on whether the issue falls within the area of superior competence of the initiat-
ing institution or of the reviewing institution. (3) The division of competence is anchored
in the distinction between law and fact. The exact line of division will ...