Premium
Contractual Discretion and Administrative Discretion: A Unified Analysis
Author(s) -
Daintith Terence
Publication year - 2005
Publication title -
the modern law review
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.37
H-Index - 22
eISSN - 1468-2230
pISSN - 0026-7961
DOI - 10.1111/j.1468-2230.2005.00551.x
Subject(s) - judicial discretion , discretion , administrative discretion , judicial review , administrative law , context (archaeology) , public law , law , private law , political science , identity (music) , legislation , control (management) , common law , law and economics , business , economics , physics , management , acoustics , biology , paleontology
While judicial control of discretionary power is at the centre of administrative law, it is a topic which has received little attention in contract. By tracing the development of the relevant case law in administrative law judicial review and in contract, the paper seeks to show how review in both contexts has converged upon a single core technique of control through decisional standards. The paper further argues that the consequent identity of method in public and private law review of discretion does not in itself weaken basic public/private law distinctions. While the territories of legislation and contract may overlap, they present basic differences as contexts for the exercise of judicial control of discretion, and these differences of context may weigh more heavily than identity of approach in determining the outcomes of litigation. 1