Do we have a choice ? An analysis of judicial review intensity of discretional actions

Government enacts a flight plan, but it increases noise pollution, or, a company takes an economic risk, but it turns out badly. Can a court say they should have taken another decision? This addresses the problem to which extent courts can intervene with freedom of action. Four types of attitudes can be distinguished: three restrict the scope of review, while the fourth allows the judge to intervene fully. Belgium and the Netherlands apply a content-based limitation of judicial review. It entails that courts can review the content of the decision which has been taken, but can look only at manifest violations. However, this solution has been increasingly attacked, often in opposite directions – some want more scrutiny, some want more discretion. Looking elsewhere, we can see that solutions adopted in the US and Germany might not have this problem. We observe that an empirical observation of how courts apply this content-based test is lacking, and that studies on the topic remain limited to one area of law. This project aims to fill these gaps by conducting a thorough legal analysis, as well as a (descriptive) empirical and (evaluative) analysis in corporate and administrative law. In this way, the research aims to contribute to the (normative) question of how far courts can intervene in our freedom of action.