Judicial Review, Administrative Inconsistency, Problems
In a 1982 law review article Professor David Mullan proposes that we adopt the identification of inconsistency as a basis for judicial review of administrative action.1 On its surface such a proposal may not seem revolutionary. The concept of precedent and rule-oriented decision-making is fundamental to common notions of justice. Arbitrariness in official action offends the rule of law. Hence to resist such a proposal may not seem at the outset a very popular task, especially if the alternative is to tolerate inconsistent administrative action. But it is not the popularity or the unpopularity of the undertaking which is troubling, so much as its ambiguity. Mullan's work draws upon the "relatively precise principle" that like cases should be treated alike. For my part, I find this precision elusive. The role of consistency in the process of judicial decision-making is controversial.2 When considered in the administrative law setting the difficulties of overseeing inconsistency within an exceptional, deferential model of judicial review are manifold.
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H. Wade MacLauchlan, “Some Problems with Judicial Review of Administrative Inconsistency” (1984) 8:2 DLJ 435.