There are shades of the Hart vs. Fuller debate in the disagreement between Scalia J. and Breyer J. in last week’s greenhouse gases case: UARG v. EPA. As part of a much wider debate about the relationship between law and morality, Hart and Fuller jousted over a rule prohibiting vehicles in the park. To simplify […] Read more

Commenter Concerned in Canada left an important comment on my post on Charter interpretation by administrative decision-makers. Her underlying concern is broader, however, and is probably shared by many. Here is the comment, lightly edited to focus on the broader concern: [H]ow concerned are you that your radical approach will essentially boil down to administrative […] Read more

The change is now complete. Email subscribers should not have noticed a difference. RSS subscribers might have received a one-time glut of posts over the weekend: my Feedly feed certainly did. If you have had any problems, please do not hesitate to contact me. Read more

I have a new essay on SSRN, “Administrative Law: A Values-Based Approach“, prepared for the inaugural Public Law Conference at the University of Cambridge later this year. Here is the abstract: I focus in this essay on judicial review of administrative action, looking at the subject “from the inside, trying to make sense of lawyers’ […] Read more

I gave a presentation a few weeks ago for the Canadian Institute. An odd subject for a partisan of deference like myself, but I enjoyed putting a paper together. Practitioners may find it provides helpful guidance on ways to attack administrative decisions. You can download it here. And here is the abstract: J’essayerai lors de cet […] Read more

An old debate in administrative law concerns the appropriate role of courts in imposing common law restrictions on discretionary powers. For example, when a statute says “X may, in his absolute discretion, do Y”, are any limitations of fairness or rationality implied by the common law? The modern tendency has been to admit that there […] Read more

Here is a problem for deferential approaches to judicial review: what about an administrative decision that is a reasonable resolution of a particular case but which is reached by flawed logic? If the flawed logic is not sanctioned, it remains on the books and may influence future administrative decision-makers: indeed, failing to follow a previous […] Read more

Some have suggested that the announcement on Friday that Mainville J.A. has been appointed from the Federal Court of Appeal to the Quebec Court of Appeal suggests that he will be appointed to fill one of the Quebec seats on the Supreme Court of Canada, a seat about to be vacated by LeBel J. Mainville […] Read more

Here is a great passage from an Australian case (Mainteck Services v. Stein Heurtey) on contractual interpretation: What is the legal meaning of a promise to sell “my Dürer drawing”, if the vendor’s wife owns a Dürer drawing which is on display in their home, and the vendor keeps another secretly in his study? What […] Read more

Canadian courts have come to accept that the constitution is not some sort of holy grail that administrative decision-makers should not touch. As it is the supreme law of the land, its writ ought to run in any government agency, and its authority may be invoked by individuals in almost any decision-making setting. But does […] Read more