Edited by Susan Rose-Ackerman and Peter L. Lindseth
Chapter 25: Judicial Review and Merits Review: Comparing Administrative Adjudication by Courts and Tribunals
Peter Cane 1. Introduction Administrative adjudication is a mechanism for resolving disputes between citizens1 and the government that arise from decisions of officials and agencies. There are two main modes of administrative adjudication: judicial review and (adopting the Australian term) merits review. Judicial review, as its name implies, is conducted by traditional courts. Merits review is conducted by bodies that are commonly referred to – in the common law world outside the US, anyway – as administrative ‘tribunals’. The term ‘tribunal’ is used in various senses; but for present purposes, it suffices to define a tribunal as an adjudicatory body that is not a court. In the US, the equivalent institution is the independent or executive agency and, in particular, officials within agencies whose allotted task is adjudication in the sense in which that term is used in the Administrative Procedure Act 1946 (APA). Such officials are known as administrative law judges (ALJs) and administrative judges (AJs) – the former, unlike the latter, being appointed under the APA. For convenience, I will often use the term ‘tribunal’ to refer to such officials as well. Whereas the term ‘judicial review’ expressly refers to the institution that conducts the review, the term ‘merits review’, by contrast, refers to the basis of review. However, the former also implicitly refers to the grounds of review that define its basis; and the grounds of review are the primary concern of this chapter. In other words, this chapter discusses the juridical nature of judicial review and merits review, respectively....
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