Blogging Hiatus

I am off on what promises to be an electronics-free holiday until the start of July.

On my return, I expect to have a look at the interesting decision of the Supreme Court of the United States in Elgin v. Department of the Treasury, discussed here by Steve Vladeck. One of the issues there is the extent to which constitutional arguments can be pursued in non-judicial bodies, a question which also arose in a recent Canadian decision, Telbani.

By then, we should also have a decision on whether one of the most newsworthy administrative structures of recent years, the individual mandate holding together President Obama's Affordable Care Act is constitutional or not. Interesting times lie ahead.

Process and Substance: What Happens when the Decision-Maker Doesn't Listen?

Another example from the Canadian courts of the thin line separating process from substance: Turner v. Canada (Attorney General), 2012 FCA 159. On this occasion, the determination that a question went to process is again plausible at first sight but troubling on closer inspection.

Due Process and Drone Strikes

Last week, the New York Times published a lengthy article on the 'secret kill list' being maintained by President Obama. Whatever the merits of targeted killings as a matter of international law, international human rights law, or justice, for students of administrative law, there are at least three aspects of interest to the story. To be clear, in what follows, I am not taking a position on the legality or morality of the strikes. But in the absence of formal due process through judicial review, it is worth considering the internal safeguards that administrative law norms suggest.

The Unfortunate Triumph of Form over Substance in Canadian Administrative Law

I have posted a revised version of my article on form and substance in Canadian judicial review doctrine on SSRN. It is now forthcoming in the Osgoode Hall Law Journal. The abstract is as follows:

The standard of review analysis for judicial review of administrative action developed over the course of four decades by the Supreme Court of Canada had two important features. First, it provided something of a bulwark against interventionist judges, thereby protecting the autonomy of administrative decision-makers and promoting deference. Secondly, it was unrelentingly substantive, rather than formal, and moved the focus of judicial review away from abstract concepts and towards the eccentricities of statutory schemes.

However, in its more recent forays into the general principles of judicial review, the Court has threatened to reverse its deferential and substantive course by following a formalistic, categorical approach rather than the standard of review analysis. In this article I will describe the Court’s efforts to reshape the law of judicial review of administrative action in two important recent cases, I will critique these efforts as favouring a formalistic approach to judicial review, and I will suggest that in its haste to simplify the law of judicial review, the Court has jeopardized the according of due deference to administrative decision-makers and erroneously favoured form over substance.

You can download the rest here.

Unequal Treatment of Local Government Taxpayers in North America

The highest courts of both the United States and Canada have both recently pronounced on claims relating to the unfairness of local government taxation systems. Before the Supreme Court of Canada, the argument went to the substantive reasonableness of the municipal by-law at issue. Further south, the Supreme Court of the United States was asked to find a violation of the equal protection clause of the 14^th Amendment to the U.S. Constitution. Doctrinally, the cases are distinct, but the striking similarity of the issues engaged and the results reached makes for an interesting comparison.

La cohérence décisionnelle en droit administratif

Je pensais de garder cette décision jusqu’au retour en classe des étudiants du préscolaire à la fin de l’été, mais finalement j’ai conclu que les principes découlant de ladite décision sont trop intéressants pour les cacher plus longtemps. La Cour d’appel y explique très clairement les principes de la révision judiciaire au Québec.

Environmental Reform in Canada

The federal government's use of an omnibus budget bill to enact measures affecting a variety of different areas has come under sustained attack (you can also listen to the comments of my colleague, Stéphane Beaulac, from the three-minute mark here).

Whatever one thinks about the substance of the underlying reforms, one can certainly quibble about the process the federal government has followed. Exposing the relevant provisions to the usual process of parliamentary scrutiny would hardly hurt and may even help the overhaul the federal government envisages.

Beyond that, however, the substance of the reforms should presumably be judged on the merits. Via Norton Rose comes an even-handed overview of the proposed changes to environmental regulation. There appears to be much give-and-take in the proposed legislation: fewer decision-makers will be obliged to conduct environmental assessments, but their decisions will now be binding rather than recommendatory; fewer effects of proposed projects are to be considered, but this seems designed to exclude consideration of matters within provincial jurisdiction; strict time-lines for decisions are imposed, but provision is made for public participation in the decision-making process; and the burden of work on the federal authorities in the environmental assessment process is reduced, but by permitting delegation to provincial authorities.

All in all, a good primer on the substance of the proposed changes. But it probably should be read in conjunction with the comments of those who fear the gutting of environmental protection.

Delegation of Law-Making Power to Private Entities

Last week the U.S. District Court for the District of Columbia upheld against constitutional challenge a delegation of power to Amtrak to develop performance standards.

Unreasonable Exclusion of Claims by Arbitrator

Another example, this time from the Manitoba Court of Appeal, of a decision-maker stretching language too far.