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Administrative law is about means and ends. According to the conventional dichotomy, the legislature decides on the ends, determining which values to be realized through legislation, and the administration decides on the means, choosing the method in which to implement legislative intents. Nevertheless, in the real world of administrative law, bureaucrats decide on both means and ends by interpreting the statute in favor of their policy choices. Judges, therefore, are called upon to solve the means-and-ends problem in the name of legality review. In doing so, judges develop different tests of judicial scrutiny. Proportionality Analysis is one of the most influential tests of means-and-ends applied by courts in various parts of the world. Following the success of its debut, the Comparative Administrative Law in Asia (CALA) Workshop invites scholars to discuss the emergence, application, variance and pathologies of Proportionality Analysis.
Generally speaking, Proportionality Analysis is applied in rights cases, which usually bring up constitutional issues. Administrative law cases are not necessarily involved with rights infringement but more so with the delegation issue – be it ultra vires, Gesetzesvorbehalt, or the Chevron Step One. However, in recent years, rights adjudication has rapidly expanded its scope so that more and more administrative law cases are litigated in terms of the conflict between rights and delegated legislation. Consequently, Proportionality Analysis has emerged as an important tool in judicial review of administrative action. Proportionality Analysis encourages the courts to review the merits of administrative action. The court is required to ask if the means adopted by the government are rationally related to the legislative purpose, if there is any less restrictive means to achieve the same purpose, and if the interests attained by the means are proportionate to the burdens imposed on the individual. All these inquiries empower the court to replace policy choices with its own judgments, which leads to the perennial countermajority debate and the proper role of the judiciary in a democratic state. Some scholars are also worried about the court's deferential attitude that might "balance rights away." In fact, the introduction of Proportionality Analysis entices administrative lawyers to reconsider the confrontation between rights protection and democratic accountability.
The CALA Workshop at Institute Iurisprudentiae, Academia Sinica welcomes papers addressing the dynamics of proportionality, judicial authority, and democratic accountability, showcasing diffusion and divergence of Proportionality Analysis in courts in Asia or in other parts of the world. The workshop also welcomes papers that explore theoretical foundation of other means-and-ends review in administrative law like the cost-benefit analysis and its resemblance to the Proportionality Analysis. Papers employing approaches other than doctrinal analysis are also encouraged for submission. Scholars interested in presenting their papers should send abstracts (under 800 words) to the coordinator before May 1. Final decision on panel composition will be announced no later than May 15. The workshop will take place on the 8th and 9th of July at Academia Sinica in Taiwan.
Coordinator: Dr. Cheng-Yi Huang, chengyi@sinica.edu.tw
Workshop Secretary: Mr. Li-Kung Chen, likungchen@sinica.edu.tw
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