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Access To Justice Theory Notes

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Access to Justice, Information and Public Participation Theory Notes. Partcipation?


Arguments that participation will only result in competition of different views maybe with a compromise at the end. All goals/interests are fixed and remain so throughout.


Arguments that participation will result in a reasoning process by which all individuals goals are altered so as to reach one optimum decision/agreement.

The question of Standing?


Sunstein - JR inherently of public concern - judicial review of administrative action began as analogy to private law in requiring a right to have been infringed. In private law, though, issues of standing cause of action and merits of claim are all intertwined as question of whether D breached a duty to C/C had a right infringed. Thus doesn't require distinct rules of standing.
[Admin law involves questions of legal validity, not individual rights, and this could be isolated in a public interest decision having no bearing on any individual's rights - this is especially so in the environmental sphere].


Eleftheriadis - Aarhus via EU breaches autonomy of MSs - MS's legal systems retain procedural autonomy which is qualified only by 'equivalence' and 'effectiveness'. To have passed proposed Directive implementing Aarhus Art 9 and thus forcing a certain procedure of standing on MSs would have gone beyond these principles - it would have forced in all cases, irrespective of effectiveness or equivalence, the availability of JR when a sufficient interest existed.


Harlow - why allow public interest action? - justifications for collective/public interest actions: (1) efficiency. But this is flawed as it completely ignores the question of whether the action should come to court at all, whether it is even justiciable. (2) Aspect of globalisation, imported with human rights movement. (3) Arguments of pluralist and participatory democracy which is facilitated by public interest groups - but what has it to do with right to invoke law? - link between right to participate in rule making, right to go to court to protect that right, right to participate in that court's decision. (???)

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