Research Handbooks in Comparative Law series
Edited by Susan Rose-Ackerman and Peter L. Lindseth
Chapter 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 understandings 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 distinction 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 competence, 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 development 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 initiating 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 often be disputed and will shift over time and from one context to...
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