Choice of Device I: Type of Reasons

Abstract

Abstract The chapter explores how courts should choose a device to fulfil a certain reason for deference. It dissects the nature of each device and highlights situations where the use of a particular device is needed to express a particular reason for deference. For example, the standard of review cannot be used to express the imperative to minimize the social costs of an erroneous ruling, which should instead be expressed using the burden and standard of proof. Where the facts that give rise to reasons for deference discriminate between deference on various issues, the court should determine which issue to defer on according to which set of facts exists. For example, if the public authority has superior expertise on the third, but not the second, limb of the proportionality test, the court should defer on the former not the latter to give effect to the expertise reason for deference.