Aston Siu has posted Standards in Judicial Review: When Should the Judiciary Correct Bad Governance? on SSRN. Here is the abstract:
This paper explores the evolving standards of judicial review across common law jurisdictions, specifically examining the tension between judicial restraint and activism in the United Kingdom and the United States. By analyzing the trajectory of English administrative law—from the Wednesbury irrationality test to the modern doctrines of “anxious scrutiny” and proportionality—and comparing it to American substantive due process debates regarding historical tradition versus reasoned judgment, this essay interrogates the judiciary’s proper role in checking executive and legislative power. The paper challenges the notion that judicial intervention is inherently undemocratic, arguing instead that the correction of “bad governance” is a fundamental duty of the courts. Ultimately, it defines bad governance not as politically unpopular policy, but as an institutional failure where public power is exercised without rational justification or structural competence. Thus, the essay concludes that rigorous judicial review acts not as a usurper of democracy, but as a necessary fidelity to the rule of law.