Choice of Device II: Strength of Reasons

Abstract

Abstract The chapter explores which device/combination of devices courts should use to give effect to the strength of the reason for deference. It compares the range and granularity of deference expressible by the six devices, arguing that the range and granularity expressible by the burden of proof are smaller/less than those expressible by other devices. The chapter argues that when deference is exercised at the definition and limitation stages in ways that lead to favourable outcomes for the primary decision-maker at those two stages, the degree of deference manifested at the three stages—defintion, limitation, remedy—is, as some have assumed, in decreasing order. The chapter then examines the combinability of devices. It defines the double counting of deference: double counting occurs when a court gives undue additional weight to a ground served by deference. Understood as such, deference using more than one device does not necessarily lead to double counting.