Thursday, 5 June 2014

Norms, Facts and Metaphors: the Fabulous Baker Factors and other Tall Administrative Law Tales

When judges strike down administrative decisions, they take a step that must be justifiable and justified in normative terms. I suppose we all agree on that.

Yet whole swathes of administrative law doctrine do not establish normative standards for judicial intervention. Rather, they rely on descriptive labels.

The rule against bias is an excellent example. A hypothetical reasonable observer is magicked up and the test for intervention is (something like) "Would a reasonable observer, appraised of the facts, have an apprehension of bias towards the decision-maker?" Yet the real question is whether a court should strike down a decision for want of impartiality.

In procedural fairness, cases are often said to turn on an appreciation of all the relevant context. In Canada, the five "Baker factors" supposedly identify where on a spectrum a particular decision is situated; depending on the decision's location, a particular set of procedural rights will attach.

A spectrum without fixed points, however, is no more than a straight line. The Baker factors do not assist in determining whether a particular procedural right should be granted. Instead, normative standards attach to each of the rights (e.g. an oral hearing will be required where it is necessary to determine an issue of credibility). In this sense, the Baker factors are fabulous.

A similar charge can be levelled against the exemptions from procedural fairness for legislative, administrative and commercial decisions, descriptions that are empty of normative content.

Substantive review is riddled with examples. Wednesbury unreasonableness conjures up an authority which has done something no reasonable authority would do, a description, not a basis for intervention. The concept of a range of reasonable outcomes bears the same difficulty: it posits a zone of reasonable decisions without precisely explaining the indicia of an unreasonable decision.

Further confusion may arise from lapses into metaphor. Does anxious scrutiny occur when a judge reads a record very carefully? Is the difference between hard look and regular look review that the judge sometimes wears his or her reading glasses? Anxious scrutiny and hard look may be good descriptions of what courts do but they give no guidance on how they ought to do it. Skilled lawyers know that there actually are normative standards for anxious scrutiny and hard look review, but they would do well to ask whether the labels are a damaging distraction from the true task of reviewing courts.

Judicial review is at base a normative enterprise. We should take care to treat it that way.

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