My colleague Matt Harrington and I had a lunchtime chat about Justice Scalia’s legacy at the University of Montreal last week. We focused on explaining Justice Scalia’s textualism and originalism, as well as his preference for rules over standards (see also this post). There has been no shortage of critical reflection on Justice Scalia’s life […] Read more

In the years from 2003 to 2008, a curious thing happened to Canadian administrative law: nothing. Between the landmark decisions of Dr. Q. and Ryan in 2003, which confirmed the primacy of the pragmatic and functional approach and its three standards of review (correctness, reasonableness and patent unreasonableness) and Dunsmuir in 2008, the Supreme Court […] Read more

British public lawyers live in interesting times. A long list of possible constitutional reforms has dominated their attention in recent times: devolution of powers, Scottish independence, human rights and the relationship with the European Court of Human Rights, membership of the European Union and, now, creation of a constitutional court. In the tumult, and especially […] Read more

From Antonin Scalia’s “Judicial Deference to Administrative Interpretations of Law“, easily the best ever introduction to an essay on administrative law: When I was invited to speak here at Duke Law School, I had originally intended to give a talk that refiected upon the relationship among the Bork confirmation hearings, the proposed federal salary increase, […] Read more

  In Youssef, an Egyptian national who has been present in Britain since 1994 challenged a decision taken in 2005 by the Foreign Secretary. In his capacity as a member of the U.N. Security Council’s Sanctions Committee, the Secretary had released a ‘hold’ on Mr. Youssef’s being placed on a sanctions list; the consequence of […] Read more

From the Privy Council comes an interesting review of the general principles governing retrospective legislation: Ferguson v. The Attorney General of Trinidad and Tobago [2016] UKPC 2. The facts in the several cases under appeal arose out of the introduction of a ten-year statutory limitation period for criminal prosecutions in Trinidad and Tobago. At the […] Read more

The potential demise of so-called Auer or Seminole Rock deference has been discussed on the blog before (see here and here). The Supreme Court of the United States is now poised to consider interring the doctrine. However, in “The Unbearable Rightness of Auer“, Cass Sunstein and Adrian Vermeule encourage the Supreme Court to leave well […] Read more

The decision of the Court of Appeal in the high-profile case of R. (Miranda) v. Home Secretary, [2016] EWCA Civ. 6 was handed down last week. My interest in the case, which stems from the detention, questioning and search of David Miranda, was piqued by Laws L.J.’s discussion of the “prescribed by law” test at […] Read more

A trilogy of recent Canadian decisions raising standard of review issues have caught my eye. In each case, a standard of correctness is applied, but different reasons are given by each court. Indeed, it would be fair to say that each court follows a different analytical approach. Some more evidence, then, of confusion in this […] Read more

Yesterday, the Canadian government took the next step in its Senate reform process by appointing an advisory board, “an independent and non-partisan body whose mandate is to provide the Prime Minister with merit-based recommendations on Senate nominations”. I have blogged already about the new government’s use of mandate letters, issued to individual ministers, to impose […] Read more