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Cane, Peter --- "Judicial Review and Merits Review: Comparing Administrative Adjudication by Courts and Tribunals" [2010] ELECD 827; 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 25

Section Title: Judicial Review and Merits Review: Comparing Administrative Adjudication by Courts and Tribunals

Author(s): Cane, Peter

Number of pages: 23

Extract:

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 adjudica-
tory 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 adju-
dication 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 conven-
ience, 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. ...