Philip Hamburger‘s Is Administrative Law Unlawful? has been getting much attention in the blogosphere recently. Hamburger guest-blogged at the Volokh Conspiracy — and his series of posts laid out his position, an emphatic “Yes”, with admirable clarity — and his detractors (Adrian Vermeule, here and here) and supporters (Gary Lawson, Michael Ramsey) are now hammering […] Read more

Here is an interesting case about judicial review of regulations with, in the background, a hint that regulatory power was used to hinder an emerging business model Sobeys West Inc. v. College of Pharmacists of British Columbia, 2014 BCSC 1414. Using its broad statutory powers, the College prohibited pharmacy loyalty schemes, the practice of giving […] Read more

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

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

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