That is the title of a famous/notorious essay by political scientist Brendan O’Leary reviewing Paul Craig’s Public Law and Democracy in the UK and the USA. O’Leary attacked Craig’s book, not so much for its content but for its very mission: to draw lessons for public lawyers from political science and political philosophy.* The basic […] Read more

My aversion to the Supreme Court of Canada’s recalibration of administrative law doctrine in Dunsmuir v. New Brunswick is well known: in my view, the Dunsmuir approach simply sweeps a whole lot of substantive analysis under a formal rug. But I thought I would nonetheless ask the question: did Dunsmuir simplify the law on judicial […] Read more

In a remarkable decision yesterday, the Supreme Court of Canada struck down British Columbia’s regime of court fees as unconstitutional: Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59. A litigant was faced with a $3,600 bill for scheduling a 10-day trial. She could not pay the court fees — […] Read more

Canadian administrative law is different in many ways from that of other Commonwealth jurisdictions, but on one question it (for the most part) clings doggedly to an old mantra: procedural questions are for the courts alone to decide, without any deference to decision-makers. This orthodoxy has recently been challenged as a matter of principle. But […] Read more

In his plenary paper at the Public Law Conference, Mark Aronson discussed the growth of substantive review in Australia, a phenomenon that can be glimpsed in most common-law jurisdictions. Mark gave three reasons for growth: 1. The rise of reasons (as a requirement imposed by statute or common law, or, I would add, self-imposed for […] Read more

Canada distinguishes between public law and private law. Judicial review of administrative action is kept separate from the law of tort, contract, property and equity. In an important 2010 decision (Canada (Attorney General) v. TeleZone Inc., [2010] 3 SCR 585, 2010 SCC 62), the Supreme Court of Canada signaled that the importance of the distinction […] Read more

I have been known to complain about courts and administrators supplementing the administrative record after a decision has been made. In a case last year, a Canadian appellate court deferred to an interpretation of law offered in an affidavit. I was reminded at the Public Law Conference that the use of affidavits to bolster the […] Read more

One of the panels at the inaugural Public Law Conference last week (see my previous post) was on legitimate expectations. I was keenly interested, as I have agreed to contribute a chapter to a forthcoming (early 2016) collection on legitimate expectations in the common law world. Cora Hoexter was sympathetic to legitimate expectations as she […] Read more

How should we describe what administrative decision-makers do when they interpret statutory provisions? In my view, they are making/interpreting/doing “law”, even if it is infused with policy considerations in a way that the judicial function is (arguably) not. Does it follow that they should perform this “law” function in the same way that courts do? […] Read more

Last week I presented my paper “Administrative Law: a Values-Based Approach” at the inaugural Public Law Conference at the University of Cambridge. I hope to have a few posts on the conference, focusing on panels that I attended. But I will start with a post on my own paper. By way of general comment, I […] Read more