In his dissent in Arlington v. FCC (noted here), Chief Justice Roberts decried the rise and rise of the administrative state. This criticism nourished an op-ed in the Washington Post by George Washington University Law School’s Jonathan Turley. Here is a taste: The rise of the fourth branch has been at the expense of Congress’s […] Read more

An organization entered into an agreement with the Minister for Citizenship and Immigration to sponsor immigrants to Canada. Initially, the agreement provided that the Minister would cover all health care costs. Subsequently, the federal cabinet (of which the Minister is a member) issued an order which had the effect of requiring the organization to defray […] Read more

The President of France, M. Hollande, has recently suggested that where the administration fails to reply to individual decisions silence should be taken as indicating consent: “dans de nombreux domaines, le silence de l’administration vaut décision d’acceptation et non plus décision de rejet”. The reasoning is obvious: citizens deserve responses from the machinery of the state; […] Read more

Richard Ekins has an interesting response to my post Death, Democracy and Delegation over on the UK Con Law blog. I have just posted a comment in reply which is worth reproducing here: I perhaps did not identify my central point with sufficient precision. My goal was to highlight the democratic potential of administrative guidelines, […] Read more

The Supreme Court of Canada heard argument last Monday in an important case on reviewing delegated legislation: Shopper’s Drug Mart v. Minister for Health. The pharmacies lost in the Ontario Court of Appeal: 2011 ONCA 830; though Epstein J.A. delivered a convincing dissent. Up for discussion at the Supreme Court of Canada was the vires […] Read more

Should courts defer to administrative decision-makers’ interpretations of the limits of their own statutory authority? The Supreme Court of the United States finally answered that question in the affirmative today, in City of Arlington v. Federal Communications Commission. I think the majority is absolutely right, as I explain below. Indeed, Scalia J.’s majority opinion is […] Read more

Common law courts are generally quite reluctant to review decisions for factual errors. Like all generalisms, this significantly understates the complexity of the area. Nonetheless, a recent Irish decision provides a fine illustration. In Richardson v. Mahon, [2013] IEHC 118, the applicant challenged a factual assertion in a report issued by the respondent tribunal. The […] Read more

I have a new post at the UK Con Law Group blog. I praise the Ménard report recently commissioned by the Assemblé Nationale while reiterating my earlier criticisms of the Irish High Court decision in Fleming v. Ireland, [2013] IEHC 2. Here is the closing paragraph: Whatever its ultimate fate, the Ménard report’s orientation is […] Read more

J’espère de voir plusieurs d’entre vous la semaine prochaine. Je donnerai la Revue annuelle de l’Association du Barreau Canadien, à Québec mercredi le 15 et à Montréal vendredi le 17. Vous pouvez vous inscrire au site-web de l’ABC. Au plaisir! Read more

Historically, judges have developed and enforced the rules of procedural fairness. Little or no deference is owed to procedural choices made by administrative decision-makers. In an important new decision, however, Bich J.A. of the Québec Court of Appeal has challenged the prevailing orthodoxy. Bich J.A. taught law at my institution, the Université de Montréal, before […] Read more