The latest contributor to the growing literature on deference and procedural fairness is Adrian Vermeule in “Deference and Due Process“: In the textbooks, procedural due process is a strictly judicial enterprise; although substantive entitlements are created by legislative and executive action, it is for courts to decide independently what process the Constitution requires. The notion […] Read more

For some time, I have wanted to write about the prevalent tendency to describe the judicial method in public law cases as one of ‘weighing’ or ‘balancing’ competing interests. It seems to me that reference to weight and balance captures only a part of the judicial task in complex cases. In fact, there is a […] Read more

In several recent decisions, the Federal Court of Appeal has set out a general framework for conducting judicial reviews of administrative action. Budlakoti v. Canada (Citizenship and Immigration), 2015 FCA 139 is an example. Stratas J.A. noted that there are “three distinct analytical steps” in any judicial review: (1)               Preliminary objections. […] Read more

Isbester v. Knox City Council, [2015] HCA 20 is an interesting example of the operation of the rule against bias to administrative proceedings. At the centre of the tale is a dog, Izzy, who had attacked and injured a person. Legislation in the Australian province of Victoria gives the Council the power to order that […] Read more

Hinse v. Canada (Attorney General), 2015 SCC 35 features some familiar fixtures, one drawn from daytime television — the innocent man wrongly imprisoned for a crime he did not commit — and one drawn from the common law — the officer(s) of the Crown exercising prerogative powers. Here, the Supreme Court of Canada’s sympathy for […] Read more

So much has already been written about the Supreme Court of the United States’ decision in King v. Burwell, 576 U.S. ______ (2015) that tax credits are available on healthcare exchanges established by the federal government to implement the Affordable Care Act that I hardly feel the need to weigh in at all: SCOTUS blog […] Read more

A new edition of Grant Gilmore’s classic Storrs Lectures, The Ages of American Law, was published recently with a new postscript by Philip Bobbitt. Gilmore left American law in the “Age of Anxiety”, an era in which I fear Americans remain, although Bobbitt makes a powerful case for the emergence of an “Age of Consent”. […] Read more

Nzolameso v. City of Westminster, [2015] UKSC 22 is a case about a technical area of law — local housing authorities’ duties to house homeless persons — but which contains interesting passages on reasoned decisions and administrative guidelines. N was evicted from a private property in Westminster and applied for local authority housing. The authority […] Read more

Long-time readers of this blog know I never really thought context had been eradicated by the simplification project which the Supreme Court of Canada began in Dunsmuir: see, e.g. my 2012 articles here and here. Standard of review issues continue to cause disquiet on lower courts around the country. Once a case does not fall […] Read more

When an administrative decision-maker hears argument but decides a point on another ground, what is the appropriate posture of a reviewing court? Is this a matter of procedural fairness, because it goes to the ability of the parties to make full and complete submissions, or is it a matter of substantive reasonableness, because it goes […] Read more