Public law theory | Page 2
Judicial Deference to Administrative Tribunals in Canada: its History and Future
Is the decision of an administrative tribunal owed deference on the review standard of “reasonableness”? What constitutes an “unreasonable” interpretation of the law? What is the proper application of the deferential standard of review? In short – and based on the ongoing evolution of the deference doctrine – when is it appropriate for a reviewing […] Read more
The Unity of Legitimate Expectations?
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
Presenting Administrative Law Values: a Note on the Inaugural Public Law Conference
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
Administrative Law: A Values-Based Approach
I focus in this essay on judicial review of administrative action, looking at the subject “from the inside, trying to make sense of lawyers’ reasons and arguments as they are actually presented and defended”. Rather than starting from the constitutional basis of judicial review and working backwards to practice, I start by identifying the core […] Read more
Crowdsourcing Regulation? Anti-Spam Enforcement by the CRTC
I posted recently about Canada’s new anti-spam law, mentioning the challenges that the CRTC would face in implementing it. The CRTC has established a complaints mechanism which can be accessed via its website. Have a look here. It is proving popular: more than 1,000 complaints were received in the first week. By the end of […] Read more
Hamburger’s “Is Administrative Law Unlawful?” (With Spoilers!)
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
Unreasonable Interpretations of Law
Abstract: Reasonableness has become the dominant standard of review of administrative action in Canada. Understanding what makes a decision unreasonable has become a critical issue for Canadian judges and jurists. The question I will address in this essay is: what does it mean to say that an interpretation of law is unreasonable?Recently, Canadian courts have […] Read more
Hart/Scalia vs. Fuller/Breyer
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
Assisted Suicide and Prosecutorial Discretion
I spoke with Rob Breakenridge about Quebec’s “right to die” legislation and a timely Supreme Court of Canada case on prosecutorial discretion. Read more