1. Judicial preconceptions of discretion
In every legal system – at least in democracies and other well ordered polities – there are issues concerning how judicial review applies in relation to fact, law, and discretion. The demarcation between law, fact, and discretion may however be problematic, as every public lawyer may observe. In different legal systems, there can be diversity of opinion as to where the distinction between law and fact should be drawn. The intensity of judicial review, too, can, and often does, differ. While recognizing all this, and giving due weight to the choices made by both constitutions and statutes, it is nonetheless necessary to be mindful of the key role that is played by background theories about public law, as well as by changing doctrines concerning whether and how far the courts should review the exercises of discretion by administrative authorities. The recent ruling of the US Supreme Court in Loper is both a paradigmatic and problematic example. It is paradigmatic, because it concerns the test for review of issues of law that had been used for four decades. It is problematic, because the révirement follows a single school of thought. It shows, moreover, that administrative law does not necessarily follow a certain path, but may, and sometime does, move backwards.

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