The "Range" of Reasonable Outcomes: a Spectrum or an Accordion?

My post welcoming Evans J.A.'s recent suggestion that weight could be accorded to administrative determinations of procedural fairness questions has provoked some debate, some in the comments section of that post, some on Twitter and some in emails to me. Another Federal Court of Appeal decision is therefore timely: Canada (Transport, Infrastructure and Communities) v. Farwaha, 2014 FCA 56.

Move Along, Nothing to See Here: Orthodoxy and Procedural Fairness

A vigorous debate erupted in the comments to a recent post on deference on questions of procedural fairness. Recently, doctrinal orthodoxy has been challenged by several Canadian judges (a challenge based on Canadian developments but which ought also to be on the radar of those overseas) who have contended that procedural questions can no longer be said to fall exclusively in the province of the judiciary.

Turning Back Time: Legitimate Expectations and the Potential Significance of Paragraph 6 of the Nadon Reference

Consider paragraph 6 of Friday's Supreme Court of Canada decision in the Nadon reference:

[6]                              The practical effect is that the appointment of Justice Nadon and his swearing-in as a judge of the Court were void ab initio. He remains a supernumerary judge of the Federal Court of Appeal.

So far attention has focused on whether Justice Nadon might have to reimburse the additional salary he received during his time as a member of the Court. That is a complicated legal question which brings into play the enforcement discretion of those with the purse strings.

Paragraph 6 might have some unforeseen consequences, however. The practical and legal effect is that the clock has been turned back to October 2013. It is as if Justice Nadon were never plucked from the three-person shortlist. It is as if there is now a two-person shortlist that the government can pick from.

Can the government ignore that shortlist? If it does so, it opens up the following problem. Rocco Galati's initial challenge to the appointment of Justice Nadon is still outstanding. You can look at the docket here: the case was stayed pending Friday's decision and remains in the system, although a direction was given today by Zinn J. for the parties to indicate their intentions within seven days.

Ordinarily, the federal government would apply for it to be dismissed and Galati would consent.

But will he? Galati may insist on waiting for a replacement to be named. If the government goes outside the two-person shortlist, Galati may well amend his application for judicial review to contend, for example, that he has a legitimate expectation that the government will finish a process it gave a "clear, unambiguous and unqualified" undertaking to complete. Remember: the clock has been turned back to October. On this hypothetical argument, it would be as if the government had proceeded through its normal process only to pick someone who had never appeared at all on the shortlist.

I am not suggesting that this sort of argument would succeed. Such an amendment would be vigorously contested on standing and justiciability grounds and it is far from clear that it would be successful on the merits. Nonetheless, as long as Galati's application is in the system, it can be amended relatively easily. And I suspect Galati is not going to consent to a dismissal until the government has appointed a replacement.

Hanging over all of this is the bunch of ancillary orders Galati is seeking, including disclosure of internal government opinions on the legality of the appointment of Justice Nadon. If he amends his initial application, the ancillary relief orders will still be there, opening up the prospect of the release of sensitive government documents.

Going outside the existing shortlist therefore risks dragging the process out further by leading to even more litigation. That is the unforeseen and doubtless unintended consequence of paragraph 6.

And What if the Nadon Reference Never Happened? A (Fanciful) Thought Experiment

As you probably know by now, the Supreme Court of Canada ruled on Friday that federal court judges are not eligible for appointment to its three 'Quebec seats': Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21. Although retrospective legislation was introduced after the appointment of Justice Marc Nadon to the Court, the legislation was ultra vires Parliament. It was a change to the "composition" of the Court, something that can now be effected only by a constitutional amendment pursuant to Part V of the Constitution Act, 1982.

Regular readers will not have been as surprised as some. The Court's analytical framework mapped my submissions to the Senate Committee on Legal and Constitutional Affairs. There, I hedged my bets on the constitutional question, but I identified strong textual, purposive and intentionalist grounds for the Court's conclusion. Much more could have been said by the Court in support of its decision on the constitutional question but it was unquestionably on solid ground. On the interpretive issue, opinion has long been closely divided. Again, there was ample support for the Court's preferred view.

On one of the Sunday talk shows, a spokesman for the federal government raised the possibility that Justice Nadon might be appointed by some other means. As I (and others) explained to the Globe and Mail, there is very little chance of that happening. I submitted an explanatory op-ed which is more expansive, but I have no idea when or where it will appear.

A more interesting question to ponder is what would have happened had the initial challenge to Justice Nadon's appointment proceeded through Federal Court. For want of expertise I park the question of whether Rocco Galati would have been successful in his claim that solicitor-client privilege was waived by the selective publication of positive opinions on the legality of the appointment. It seems to me a solid tactical reason for the course taken, as does the need for a relatively swift resolution of a controversy that has left the Supreme Court a judge short during two terms.

I noted at the outset that Galati's challenge had significant merit. Galati had standing, the issue was justiciable and he had a strong argument on the interpretation of section 6 of the Supreme Court Act.

What was less clear, as Finn Makela noted in a comment, was whether the reviewing court would have to defer to the federal government.

There would have been strong arguments for deference. Though hedged in by statute, the power to name Supreme Court judges is plainly a discretionary one and may be based in part on broad considerations of policy, factors which trigger deference in the Court's current analytical framework.  Moreover, even though the government did not necessarily set out its interpretation of the Supreme Court Act, its preferred view was "implied" in its conclusion that Justice Nadon was eligible; and a court may have had to defer to the interpretation advanced in litigation in response to Galati's challenge.

As against this, the case might have been one which fell in the narrow category of "constitutional" questions reserved to the courts. As we now know, the "composition" of the Supreme Court of Canada is protected from "substantive change" (para. 105). Galati would have argued that what is impermissible by legislation is also impermissible by executive action. I agree, but the 'correctness' categories are narrow enough that the courts might nonetheless have felt bound to defer to the federal government's interpretation, especially since this sort of problem has never really been authoritatively resolved in Canada.

If deference were due, the federal government should in my view have won the case. On my view, recently set out in "Unreasonable Interpretations of Law", Galati would have had to identify a fatal flaw in the reasoning advanced by the federal government. This would have been very difficult. The expert opinion published in support of the appointment was unreasonable because it ignored section 6 of the Supreme Court Act, which was the key provision, but the federal government's ultimate litigating position advanced a plausible interpretation of the relevant statutory provisions. It is easy to disagree with the federal government's position but difficult to say that it was unreasonable. (I digress to say that I completely disagree with deferring in this sort of situation, but that is an argument for another day!).

Granted, Canadian courts have not adopted the view I set out in "Unreasonable Interpretations of Law". They have tended to defer less on questions of statutory interpretation. Nonetheless, even supporters of the Court's decision on Friday acknowledge that the interpretive question was "close", surely close enough that deference to the federal government would have tipped the scales decisively in favour of Justice Nadon.

Of course, this thought experiment is fanciful. The federal government really had no option but to refer the matter to the Supreme Court of Canada for authoritative resolution. I think it did the right thing in doing so. The thought experiment is nonetheless interesting. And in light of the result a deferential approach could well have given, it provides food for thought about the appropriateness of deference, especially on questions that touch fundamental constitutional values.

Overlapping Jurisdiction and Access to Administrative Justice: Université McGill c. Ong, 2014 QCCA 458

There are two interesting aspects to Université McGill c. Ong, 2014 QCCA 458, a technical aspect about administrative-law doctrine and a substantive aspect about access to administrative justice.

O was an employee of McGill University until she was dismissed for mishandling cash and impeding an investigation into missing funds. She vigorously contested the dismissal before the Commission des relations du travail. But she also pursued an arbitration option made available by the University's dispute resolution policy, a policy incorporated into her contract of employment.

She thus ran into s. 124 of the Loi sur les normes du travail, which allows an employee such as O to contest a dismissal before the Commission except:

where a remedial procedure, other than a recourse in damages, is provided elsewhere in this Act, in another Act or in an agreement.

Alternative procedures have to be equivalent to the Commission's procedures in order to trigger this provision. Did the arbitration procedure contained in the university's dispute resolution policy oust the jurisdiction of the Commission?

The Commission concluded that it did not because the employee had to foot half of the arbitrator's bill. Whereas the Commission grants free access to eligible employees, who may, moreover, benefit from being represented by another regulatory agency during the process.

Emphasizing the desirability of access to justice, Thibault J.A. agreed with the Commission. An inaccessible remedy is not an effective remedy:

[66]        En donnant effet à la volonté clairement exprimée par le législateur de permettre à un salarié d’avoir accès à un décideur gratuit en cas de congédiement sans cause juste et suffisante, la CRT s’est assurée de l’efficacité du recours de l’article 124 LNT. Elle a jugé qu’un recours non accessible n’est pas un recours efficace. Cette interprétation n’est pas désincarnée; elle témoigne du souci de la CRT de tenir compte de la vulnérabilité du salarié congédié qui ne peut pas compter sur l’assistance financière de son association accréditée (ou, le cas échéant, d’une autre association qui lui procure des avantages similaires) pour payer les frais d’arbitrage et le représenter.

Interestingly, Thibault J.A. recalled the emphasis recently placed by the Supreme Court of Canada on access to justice in Hryniak v. Mauldin, 2014 SCC 7, a landmark case involving the criteria for granting summary judgment:

[1]                              Ensuring access to justice is the greatest challenge to the rule of law in Canada today.  Trials have become increasingly expensive and protracted.  Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial.  Without an effective and accessible means of enforcing rights, the rule of law is threatened.

One could be cynical about whether Hryniak was about access to justice or access to judges, but this case makes clear that the Supreme Court's message has been widely received. Sometimes, if not most of the time, access to justice requires access to administrative justice (see also this post by Ian Mackenzie). A timely reminder, then, from the Quebec Court of Appeal.

Now for the technical aspect. The Commission's interpretation of s. 124 (a provision of its constitutive statute) was reviewed on a correctness standard:

[41]        Cette question, éminemment reliée au droit du travail, nécessite une comparaison entre deux recours pour vérifier si les décideurs visés ont la même capacité de réviser la décision de l’employeur, pour mettre en parallèle leurs pouvoirs de réparation, pour examiner le cadre procédural de chacun des recours et pour vérifier s’ils présentent une efficacité comparable. Ce travail de comparaison implique une connaissance intime du mécanisme de réparation de la LNT. Il fait aussi partie des éléments dont la CRT a une connaissance approfondie en raison de la mission qui lui est législativement confiée.

[42]        Mais, lorsque l’exercice a pour conséquence de délimiter la compétence de deux tribunaux spécialisés, ou que la question en est une d'importance pour le système juridique en général, il faut conclure que la norme de la décision correcte s’applique. C’est ce qu’a fait la Cour suprême dans SFPQ précitée. Se posait la question de savoir qui, de l’arbitre de grief ou de la CRT, devait entendre le recours de deux salariés (justifiant de deux ans de service continu) à qui la convention collective applicable niait le droit de grief en cas de congédiement sans cause juste et suffisante.

Once again the difficulty of assigning a question to one of the correctness or reasonableness categories established by the Supreme Court of Canada rears its head. Plainly the Commission was interpreting a provision of its constitutive statute, which presumptively attracts deference and was in any event well within the field of its expertise. Yet in interpreting s. 124 it had to determine whether it or the arbitrator had jurisdiction to hear O's complaint, a matter of overlapping jurisdiction which is to be resolved by the ordinary courts.

So what category does the decision fall into? We still lack a stable set of factors which would indicate how reviewing courts are to classify decisions. In the absence of guidance on how and when the presumption of reasonableness review of interpretations of constitutive statutes can be rebutted (or the outright abolition of correctness review!) difficult questions of classification are likely to recur and receive different treatment from different courts.

UPDATE: I hit "publish" too soon. Thibault J.A. relied in part on Supreme Court precedent to justify the application of the correctness standard. But in Syndicat de la fonction publique du Québec v. Quebec (Attorney General), 2010 SCC 28, standard of review was not really discussed. Moreover, as the Court said recently in Agraira (at para. 48), "if the relevant precedents appear to be inconsistent with recent developments in the common law principles of judicial review" previous case law may not be helpful. Given that the presumption of reasonableness review for interpretations of home statutes post-dates the 2010 case, it does not give strong support to the Court of Appeal's choice of the correctness standard.

Procedural Fairness and Prosecutorial Discretion: Murphy v. Ireland, 2014 IESC 19

The Irish Supreme Court recently released its judgment in Murphy v. Ireland, 2014 IESC 19. Of greatest general interest is the recognition that the applicant had a limited right of procedural fairness which imposed a duty on the Director of Public Prosecutions to give reasons to send him for a non-jury trial at the Special Criminal Court on various taxation offences.

The Nadon Reference: the 16 (?) Possible Outcomes

On Friday, the Supreme Court of Canada will hand down its decision in the "Nadon reference". For further background -- and my take on the key issues -- you can download my submissions to the Senate Committee on Legal and Constitutional Affairs. Two posts by Michael Plaxton -- here and here -- also provide a good overview.

Unreasonable Interpretations of Law

I have posted Unreasonable Interpretations of Law to SSRN. Here is the 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 adopted an approach akin to the American Chevron doctrine. Unfortunately, this approach is badly misconceived. It is doctrinally incoherent; relies on the discredited concept of jurisdictional error; is beset by a fatal analytical flaw; reduces the importance of deference; and results in the unprincipled imposition of lawyerly methodology on non-lawyers empowered to resolve regulatory questions. It allows reviewing courts to employ the judicially developed principles of statutory interpretation to fetter the autonomy of administrative decision-makers.

A departure from a result reached on the application of the principles of statutory interpretation does not automatically justify intervention by a reviewing court, even if the result is said to be “clear”. Ambiguity should not be made the gateway to deference. If the divergence of views between the tribunal and the reviewing court can be explained by – for example – reference to cogent reasons and/or relevant evidence, then a deferential court should refuse to intervene.

Judicial review of administrative action should be limited to ensuring compliance with the fundamental precepts of the legal order. Courts should be cautious about imposing legalistic norms on administrative decision-makers established precisely to avoid a judicialized approach to regulation. Where an administrative decision-maker can explain its decision in cogent terms, its application of a legal concept – like estoppel, the rule of lenity or the principles of statutory interpretation – should be upheld. Chevron, I suggest, represents a category mistake. It erroneously treats departure from judicial approaches to statutory interpretation as deviations from the norm, when in fact judicial intervention to quash administrative decisions should be treated as deviant.

Courts should be ever-wary of the paradox of rationality: to subject administrative decision-makers to judicial review for rationality is to subject them to judicial standards of rationality. This can easily shade into the inappropriate imposition of lawyerly methodology. Resolving the paradox requires a subtle approach to the task of judicial review of administrative action rather than a dogmatic insistence on the primacy of judicially developed principles of statutory interpretation.

In Parts I and II I set out the current state of Canadian law, emphasizing in Part I the dominance of reasonableness (and hence the urgent need for a better understanding of its meaning) and in Part II the problematic approach to identifying the “range” of reasonable outcomes in a given case.

My focus is on Canadian law but what I have to say here in Parts III and IV will apply equally to the United States and other jurisdictions in which deference is accorded to administrative decision-makers’ interpretations of law. The search for “clarity” should be jettisoned in favour of a more modest approach.

I have a few more weeks before the submission deadline for this paper, so feel free to weigh in with comments.

Have I gone too far to describe Chevron as a category mistake?

Is my preference for how judicial review of interpretations of law should operate tenable?

Should ambiguity really be the gateway to deference?

Are there important cases (Canadian or otherwise) that I have not taken account of?

The paper can be downloaded here.

The Relationship between Public Law and the Law of Nuisance: Coventry v. Lawrence, [2014] UKSC 13

The UK Supreme Court decided an important case on the law of nuisance last week: Coventry v. Lawrence, [2014] UKSC 13. One of the many important issues was whether planning permission is a defence to an action in nuisance.

David Feldman on the Effects of Invalid Decisions (the Void/Voidable Distinction): the Utility of Principles in Administrative Law

David Feldman has posted "Error of Law and the Effects of Flawed Administrative Decisions and Rules" on SSRN. Here is the abstract:

Over the last half-century, English administrative law and theory have increasingly paid lip-service to three propositions. (1) All errors in the course of making a decision or rule are to be regarded as errors of law. (2) All errors of law make the decisions to which they relate null and void. (3) If a ‘decision’ is a nullity, it can have no legal effect.

Yet it would be extremely inconvenient if every error which infringed a legal requirement in the making or implementation of a rule or decision were to deprive it of legal effect. The error might be minor, or do no harm to anyone. It might not make the decision (and hereafter, unless the context otherwise requires, ‘decision’ includes ‘rule’) inappropriate or deprive it of social and political legitimacy. The damage caused by refusing all legal effect to it might then be out of all proportion to the seriousness of the error. However, the three propositions make it difficult to provide a principled explanation or justification for those outcomes, and therefore to predict what effect a flawed decision will have. Section I argues that the propositions are based on a misleading interpretation of Anisminic Ltd v. Foreign Compensation Commission which has cloaked the creativity of administrative lawyers for forty years. Section II builds an alternative set of principles from the practice of courts. Section III suggests that these principles provide a basis for a realistic, predictable and principled understanding of administrative law.

I am not sure that propositions (2) and (3) are pervasive amongst people who think seriously about public law but they do surface with astonishing regularity and vigour. In any event, the continuing effect of administrative decisions adjudged invalid -- often known as the distinction between "void" and "voidable" decisions -- is a topic deserving of the lengthy treatment that Feldman has given it.

To quote from his conclusion:

Case-law does not support the view that all legal flaws make a decision void. Sometimes they remain valid unless quashed, reversed, or declared to be unlawful (and occasionally even then they continue to have some legal effects). Judges and legal professionals more generally do not behave as if nullity were always the consequence of an error of law. The leading theories which attempt to rescue the propositions by explaining away or rationalizing inconsistent decisions do not reliably offer guides to future cases. When we look afresh at what is really going on, building on the case-law rather than imposing a theoretical strait-jacket on it, it becomes clear that it is shaped by principles which enable us to understand and predict outcomes reasonably confidently in most cases. In other words, administrative law can justifiably be regarded as ‘law’, rather than an unprincipled lottery. We have identified seven principles.

Feldman's seven principles (access, legality, certainty, finality, courts do not act in vain, difference, morality and efficacy) can be grouped under the more capacious headings of "the rule of law" and "principles of good administration".

These principles -- or values, as I prefer -- have extraordinary explanatory power across the whole field of administrative law. They are especially useful at explaining past cases and justifying outcomes in present cases where there are few hard-and-fast rules: the scope of judicial review; discretion to refuse a remedy; whether an administrative decision can be challenged in a private law action or other non-judicial review forum; and, of course, the effects of decisions later adjudged to be invalid.

You can download the paper here.

Deference on all Types of Procedural Fairness Question? Maritime Broadcasting System Ltd. v. Canadian Media Guild, 2014 FCA 59

In Maritime Broadcasting System Ltd. v. Canadian Media Guild, 2014 FCA 59, Stratas J.A. added his voice to the chorus of judges urging deference on questions of procedural fairness. A choir composed of Bich J.A., Evans J.A. and Stratas J.A. cannot be drowned out by assertions of the orthodoxy that 'correctness is the standard of review for procedural fairness questions'. The Supreme Court of Canada is going to have to address this question sooner rather than later.

Curbing 'Coherence' as a Reason for Correctness Review in Canadian Administrative Law

Late last year, the Supreme Court of Canada derided "fashionable" claims by applicants for judicial review that a correctness standard should apply in the review of administrative decisions. Yet such claims continue to be made successfully before lower courts. Sometimes they are plausible (see here), sometimes they are not (see here, at para. 59). Clear guidelines as to when cases fall into one category rather than another have not been forthcoming. There has, however, been some movement towards curbing the extent of one of the 'correctness categories'.

In McLean, the case in which applicants were admonished to cease being "fashionable", the Court summarily rejected one of the arguments for correctness review. In Rogers, the Court had substituted its interpretive view for that of the Copyright Board on the basis that the relevant question could have been raised at first instance before a court. On appeal, the standard would have been correctness. Coherence thus required correctness review in judicial review as well.

As I noted at the time, the contours of this 'coherence category' were unclear. Rogers did suggest that in statutes where regulatory enforcement was shared between an agency and the courts, correctness would be the standard, though courts have been reluctant to push Rogers to its logical conclusion. The applicant in McLean made this argument and received the back of the Court's hand:

[24]                          This case is different.  As Rothstein J. made clear in Rogers, it was the fact that both the tribunal and the courts “may each have [had] to consider the same legal question at first instance” that “rebutt[ed] the presumption of reasonableness review” (para. 15 (emphasis added)).  Here, the legal question is the interpretation of s. 159 as it applies to s. 161(6)(d) — and it is solely the Commission that is tasked with considering that matter in the first instance.  Accordingly, there is no possibility of conflicting interpretations with respect to the question actually at issue.  The logic of Rogers is thus inapplicable.

Because the same question could not arise at first instance before both the Commission or a court, Rogers did not apply. This limitation on Rogers is itself relatively limited: while the validity of an order barring an individual from engaging in the securities market presumably could be raised before a court in a private-law action, the order would necessarily have to have been issued. The Commission would have had to have acted first by imposing the order.

A more thoroughgoing attack was made by Evans J.A. in Re: Sound v. Fitness Industry Council of Canada, 2014 FCA 48. The issue here was whether a collective society was entitled to receive royalties for all music performed in fitness classes or only royalties for those artists who had authorized it to do so. Evans J.A. acknowledged that it would be possible that a court would have to broach this question at first instance, but that such an action could proceed only with ministerial consent (at para. 48). He therefore dismissed the suggestion that Rogers thereby applied:

[49]         In my view, this theoretical and somewhat remote possibility is not sufficient to bring the present case within the Rogers exception. The requirement of Ministerial consent before a society can bring an action to recover equitable remuneration instead of seeking the Board’s approval of a tariff is a clear indication that Parliament intended the Board to have primary jurisdiction over the collective enforcement of neighbouring rights, including the interpretation of the statutory provisions governing this complex, rate-setting scheme. No such provision limited the copyright holder’s right in Rogers to bring an infringement action that could have required a court to decide the same legal question as that decided by the Board.

So Rogers continues to be chipped away at.

Deference, Weight and Procedural Fairness

In both Canada and the United States, considerable jurisprudential effort has been expended on identifying "standards of review" of administrative action. Standards of review refer to the tests applied to determine whether a court should strike down administrative decisions.

Year in Review: the 6-Minute Administrative Lawyer

The Law Society of Upper Canada (to the uninitiated, that's the Ontario Bar Association) is holding its annual 6-Minute Administrative Lawyer conference next month. I'm doing the 'Year in Review' presentation. Here's the abstract:

I will discuss the leading Supreme Court of Canada (“the Court”) decisions of the one-year period bookended by the Six-Minute Administrative Lawyer conferences of 2013 and 2014. I have chosen those I consider of greatest importance and interest; and I have added an important case from the Quebec Court of Appeal. Yet again, questions about the standard of review analysis abound. For something apparently simplified in Dunsmuir v. New Brunswick, it provokes a great many questions. This year, questions about the scope and meaning of the framework established in Dunsmuir and subsequent cases were most prominent.  

I will proceed case-by-case rather than thematically, but I should draw your attention at the outset to five themes which recur. The first is the uncertain scope of the post-Dunsmuir framework: does it apply to ministerial interpretations of law; what about regulations issued by a minister or cabinet? The second is the continued failure of the Supreme Court of Canada to provide criteria to identify questions to which a standard of correctness applies. The third is the ability of decision-makers to bolster their decisions after judicial review proceedings have been commenced. The fourth is the revival and development of troublesome distinctions, between “law” and “policy”, “clear” and “unclear” statutory provisions, and “implied” and “express” components of decisions. The fifth is the unstable nature of a single reasonableness standard that has two distinct aspects, a process aspect and a substance aspect.

And if there is one unifying ‘meta’ theme it is the Court’s reluctance to engage in grand theorizing about the post-Dunsmuir framework. Yet without some grand theorizing, it is likely that questions about administrative-law doctrine will continue to abound.

Administrative Law Matters at the Movies: a Whimsical Post for Oscar Night

Unlike most well-adjusted people I do not make a habit of watching the Oscars. I do make a habit, however, of watching movies that were nominated for Oscars (this and the IMDB rating system largely dictate my entertainment choices). Last night, I sat through Dallas Buyers' Club, which is tipped to win heavily this evening.

Although Matthew McConnaughey's performance in the lead role was very good, I can't say I was otherwise terribly impressed. Foul-mouthed homophobe moves into a circle of homosexuals, is won over and reforms? Tenacious little man takes on the system? Insider (played by a very worried-looking Jennifer Garner) becomes appalled by how the system works and turns against it? You will pardon my saying that I did not find the primary themes terribly original.

What may be of interest to administrative lawyers is the central place in the movie of a regulatory agency, the Food and Drug Administration. Briefly, Ron Woodruff (Matthew McConnaughey) is diagnosed with AIDS and learns that the preferred contemporary treatment, a drug called AZT, seems to do as much harm as good.

He identifies unapproved drugs which are more effective and begins importing them from other countries. At this point, he runs into (predictable) difficulty with the FDA. Woodruff acknowledges that it would be illegal to sell unapproved drugs so he instead forms a private association (the Dallas Buyers' Club) members of which receive drugs in return for a monthly fee.

In a raid by FDA officials, his products are seized, on the basis that they are improperly labelled. He roars that this is a 'technicality' though of course his own scheme is evidently predicated on an extremely lawyerly reading of the relevant statutes.

What this scene and Woodruff's subsequent troubles with the FDA and taxman tend to demonstrate is that regulatory agencies wield enormous power in the modern state. When they come to get you there is almost always some regulatory requirement somewhere that you will have missed! A problem of a much greater magnitude for someone like Woodruff than for a larger entity which has the resources to lawyer up and charge well-armed into a long and attritional battle. Another reason to think seriously about enforcement discretion.

High-profile movies do not often touch in great detail on legal issues, but Dallas Buyers' Club does. The movie contains plenty of other occasions to ponder the modern role of regulatory agencies. It might even make worthwhile classroom material.