New Paper — The Rise of Facts in Public Law

With my excellent former research assistant, Kseniya Kudischeva, I have prepared a chapter for a forthcoming volume edited by Anne Carter and Joe Tomlinson on Facts in Public Law Adjudication. Our chapter is “The Rise of Facts in Public Law“:

In Commonwealth jurisdictions, judges have traditionally been reluctant to grapple with factual issues in public law cases. Since the latter half of the twentieth century, however, Commonwealth courts have taken on an unmistakably larger role in making factual assessments in public law proceedings.

In this Chapter, we identify four distinct strands to this larger role: factual assessments in judicial review of administrative action; factual assessments in judicial review of legislation; factual assessments in the context of systemic challenges to the legality of regulatory regimes; and factual assessments as part of constitutional causes of action.

We describe each of these in turn, attempting to explain briefly why each strand has developed, highlighting practical and principled difficulties that each has given rise to, and the solutions courts have relied upon to alleviate or eliminate these difficulties. Our thesis is that developments in judicial review have caused judges to engage increasingly in factual assessments, causing practical and principled difficulties which, in turn, have provoked judicial responses designed to alleviate or eliminate the difficulties.

Our posture in this Chapter is descriptive and analytical, rather than normative. We take no firm view on the seriousness of the practical and principled difficulties we have identified or of the appropriateness of the judicial responses we have noted. There is, however, no doubt that factual assessments now play an increasingly important role in public law adjudication and that with this role comes practical and principled difficulties which call for judicial responses.

Download it here.

This content has been updated on October 26, 2022 at 16:09.