Variable Error of Law

This is a paper about the limits to judicial review of administrative action where the ground for intervention is an error of law, which for present purposes I define to mean a misinterpretation of a relevant statute. If review were both available and routinely granted for mere error of law, then judicial review would become a de facto vehicle for appeals on any point of law. The courts of the United States, Canada, England, New Zealand and Australia, have all avoided that outcome, but the differences in the ways they have achieved this have produced interesting differences in judicial review doctrine and practice. Courts in the United States and Canada practise "deference" doctrines, whereby they deny that they have (or even should have) the last word on some matters of legal interpretation. The judicial review courts of Australia, New Zealand and England all claim to have the last word on such matters, but in fact resort to a variety of doctrinal and discretionary methods for exercising self-restraint that might loosely be called "deference" practices. This Chapter examines the doctrinal and practical differences between those jurisdictions, and offers some constitutional and historical explanations. It concludes by doubting that judicial review should ever have a single degree of intensity of review for error of law, and by questioning the utility of the comparativist search for "better" solutions.