Legal Academia 2.0: New and Old Models of Academic Engagement and Influence

Quite a bit away from our usual fare, but my paper for the upcoming Symposium on the Nadon Reference draws on my experiences in the online world. Here is the abstract for Legal Academia 2.0:

Across the country, legal and political aficionados hunched over their keyboards waiting for the announcement. Some were genuinely surprised by the decision. The leader of the country had staked a great deal of political capital on a legal argument that was rejected by a majority of the Supreme Court. It was a decision that rocked the legal establishment and forced a rethink of the fundamentals of constitutional law. And yet, for those in the know, the decision was not a surprise at all. Serious flaws in the government’s legal arguments had been flagged long ago. A key aspect of the reasoning was drawn from an academic article posted in an online database. For those who had followed the case on blogs and social media, the decision was predictable, though no less monumental for that.

I am writing, of course, about National Federation of Businesses v. Sebelius, the case in which the Supreme Court of the United States upheld President Obama’s landmark healthcare reform against a constitutional challenge. But I could have been writing about Reference re Supreme Court Act, ss. 5 and 6, the case in which the Supreme Court of Canada concluded that Marc Nadon, Prime Minister Harper’s nominee to fill its vacant seat, was ineligible. Both the Obamacare case and l’affaire Nadon have much in common. Apart from their political importance, they both highlight the new means that legal academics can use to engage with the wider community.

In this short essay, prepared for a symposium on l'affaire Nadon I will contrast the old and new models of academic engagement, by particular reference to Obamacare and l’affaire Nadon. The lessons are straightforward. Whether concerned to increase their influence or mindful of the need to check it, academics should pay attention to the online world. The same goes for other actors in the wider community: judges, law clerks, lawyers, litigants, journalists, politicians, political staffers, and lay people.

This is a thinkpiece, so comments are especially welcome. Download it here.

Won't Someone Please Think of the Civil Servants: John Doe v. Ontario (Finance), 2014 SCC 36

By now, it is a familiar story. The standard of review is reasonableness. An exhaustive review of the relevant statutory language and factual matrices follows. And then there is a brief conclusion: the decision is reasonable or unreasonable.

Advisory Committees for Important Appointments: Does Trudeau's Senate Plan Require a Constitutional Amendment?

APOLOGY: I worked on this post Thursday evening and hit "publish" on Friday. It did not appear until Saturday, however, and when it did, one of the drafts appeared. Here, fixed as of Monday May 12, is what I actually wanted to say. Apologies to anyone who got the half-baked version of my analysis.

It is often prudent to set out in a statute the qualifications of and process for selecting members of administrative bodies. It would be prudent to do so with the Canadian Senate too, but doing so must take account of an important recent decision on constitutional amendment in Canada.

The leader of the Liberal Party of Canada, Mr. Trudeau, has proposed to make appointments based on recommendations from an advisory committee. The question is whether this is lawful in light of the Supreme Court of Canada's conclusion in Reference re Senate Reform, 2014 SCC 32 that non-binding elections to that august body could not be held without a constitutional amendment.

Part V of the Constitution Act, 1982, provides that changes to the "method of selecting Senators" require a constitutional amendment (s. 42(1)(b)). Consultative elections ran afoul of this in two ways, in form -- i.e. the text of the Constitution -- and substance -- i.e. the "architecture" of the Constitution ("the Constitution should not be viewed as a mere collection of discrete textual provisions. It has an architecture, a basic structure", para. 27).

Substantively, elections would change the character of the Senate:

[60]                          The proposed consultative elections would fundamentally modify the constitutional architecture we have just described and, by extension, would constitute an amendment to the Constitution. They would weaken the Senate’s role of sober second thought and would give it the democratic legitimacy to systematically block the House of Commons, contrary to its constitutional design. 

Formally, the Court held, the "broad wording" of Part V "covers the implementation of consultative elections" (para. 64). It was not enough that the Prime Minister retained ultimate appointment discretion, because the "plain meaning" of the text "goes beyond the formal mechanism of appointment" (para. 67):

[65]                          By employing this language, the framers of the Constitution Act, 1982 extended the constitutional protection provided by the general amending procedure to the entire process by which Senators are “selected”. The proposed consultative elections would produce lists of candidates, from which prime ministers would be expected to choose when making appointments to the Senate. The compilation of these lists through national or provincial and territorial elections and the Prime Minister’s consideration of them prior to making recommendations to the Governor General would form part of the “method of selecting Senators”... My emphasis.

How do Mr. Trudeau's measures stack up?

They pass the test of substance with flying colours. The Court noted that the Senate has two fundamental features, providing a "sober second thought" as to proposed legislation and "the additional role of providing a distinct form of representation for the regions that had joined Confederation and ceded a significant portion of their legislative powers to the new federal Parliament" (at para. 15), through which it came to serve "as a forum for ethnic, gender, religious, linguistic, and Aboriginal groups that did not always have a meaningful opportunity to present their views through the popular democratic process" (at para. 16). Striking a committee with a mandate to find non-partisan leaders in various fields of public policy, with a view to ensuring regional and minority representation, would surely enhance the fundamental features of the Senate.

The formal test presents difficulties, however. An advisory committee would surely form part of the "entire process" of appointment, informing the Prime Minister's "recommendations". Even if the committee only presented a shortlist, from which the Prime Minister would be free to make the ultimate choice, his discretion would be somewhat constrained. The committee's recommendations would shape the "entire process".

But it would be absurd to conclude that these difficulties doom Mr. Trudeau’s reform proposals. First, it allows form to triumph over substance in the case of a conflict between them. Consultative elections did not present any difficulties on this score: they violated both the form and substance of the Constitution. But must form slavishly be followed at the expense of substance? Second, it means that informal discussions that are not placed on a statutory footing are less likely to violate the Constitution. Yet this is to prefer decision-making in the dark to decision-making in the open (a phenomenon I have worried about before). Worse, it is to prefer decision-making in the dark by elites, as Dwight Newman has observed.

What should we do when form and substance clash? Consider this passage:

[25]                          The rules of constitutional interpretation require that constitutional documents be interpreted in a broad and purposive manner and placed in their proper linguistic, philosophic, and historical contexts...Generally, constitutional interpretation must be informed by the foundational principles of the Constitution, which include principles such as federalism, democracy, the protection of minorities, as well as constitutionalism and the rule of law... 

[26]                          These rules and principles of interpretation have led this Court to conclude that the Constitution should be viewed as having an “internal architecture”, or “basic constitutional structure”...The notion of architecture expresses the principle that “[t]he individual elements of the Constitution are linked to the others, and must be interpreted by reference to the structure of the Constitution as a whole”...In other words, the Constitution must be interpreted with a view to discerning the structure of government that it seeks to implement. The assumptions that underlie the text and the manner in which the constitutional provisions are intended to interact with one another must inform our interpretation, understanding, and application of the text. Citations omitted, my emphasis.

This passage suggests that form and substance should not be considered as independent prongs on which problematic constitutional reforms are impaled. Rather, a more holistic analysis should be performed, with both form and substance (including the Constitution's foundational principles) relevant to whether a proposed reform requires a constitutional amendment.

A holistic analysis would approve of Mr. Trudeau's proposals, because they would further the fundamental features of the Senate, while also respecting the foundational principles of protection of minorities, federalism and democracy by ensuring that criteria are set out to appoint regionally and ethnically diverse Senators in a transparent process. It would be perverse to conclude that such a set of proposals could not be implemented without a constitutional amendment.

Unreasonable Interpretations of Law -- Final Version

The final pre-copy-edit version of my paper, Unreasonable Interpretations of Law is available for download from SSRN. I have made some revisions in response to comments.

The paper will appear in a volume of the Supreme Court Law Review which will also be published as a stand-alone book, Administrative Tribunals and Judicial Deference in Canada: Its History and Future.

Justice Joseph T. Robertson of the New Brunswick Court of Appeal (formerly of the Federal Court of Appeal and, before that, a distinguished academic) has produced a comprehensive guide to deference in Canada. His is the main contribution to the volume. It will be accompanied by my essay and one by Peter A. Gall, Q.C., one of the country's leading administrative law practitioners.

Here is my 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, 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.

Administrative Independence: the Importance of Security of Tenure

Independence of administrative decision-makers is a variable concept, as Richard Revesz and Kirti Datla remind us:

Structural differences between agencies result in different levels of independence. Seven structural features are traditionally associated with agency independence: removal protection, specified tenure, multimember structure, partisan balance requirements, litigation authority, budget and congressional communication authority, and adjudication authority. Some of these features contribute more to independence than others. For example, agencies headed by a group generally have greater independence from the president than agencies headed by a single person, in part because it may take a long time for the president to appoint a majority of a group. (full paper)

As they say, these structural features place agencies on a spectrum. They properly reject American law's "false dichotomy" between independent and executive agencies, a distinction which turns on the scope of the President's power to remove the head of the agency from office. This distinction fails to capture the variability of independence and, indeed, distracts attention from the important structural features Revesz and Datla identify.

When it comes to adjudicative tribunals -- bodies established to determine whether individuals are eligible for certain rights and entitlements -- rigorous standards of removal protection and specified tenure are appropriate. 

Rejecting the suggestion that the federal government could unilaterally impose term limits on members of the Canadian Senate, the Supreme Court of Canada recently commented expansively in Reference re Senate Reform, 2014 SCC 32 about the importance of security of tenure:

[79]                          As discussed above, the Senate’s fundamental nature and role is that of a complementary legislative body of sober second thought. The current duration of senatorial terms is directly linked to this conception of the Senate. Senators are appointed roughly for the duration of their active professional lives. This security of tenure is intended to allow Senators to function with independence in conducting legislative review...A significant change to senatorial tenure would thus affect the Senate’s fundamental nature and role...

[80]                          The imposition of fixed senatorial terms is a significant change to senatorial tenure. We are not persuaded by the argument that the fixed terms contemplated in the Reference are a minor change because they are equivalent in duration to the average term historically served by Senators...Fixed terms provide a weaker security of tenure. They imply a finite time in office and necessarily offer a lesser degree of protection from the potential consequences of freely speaking one’s mind on the legislative proposals of the House of Commons.

Of course, this must be true a fortiori of administrative decision-makers appointed to renewable fixed terms, always looking over their shoulders to ensure that their master is not displeased. While the Senate's independence of mind is vital to the democratic process, administrative decision-makers' independence of mind is vital to the vindication of individual rights accorded by legislation. What is good for all Canadians, in the context of the Senate, is surely good for them in the context of adjudicative tribunals as well.

How (Not) to Conduct Deferential Review: Dionne v. Commission scolaire des Patriotes, 2014 SCC 33

The province of Quebec allows pregnant workers to exercise a right of withdrawal from dangerous work environments. At issue in Dionne v. Commission scolaire des Patriotes, 2014 SCC 33 was a supply teacher's thwarted effort to exercise her right of withdrawal. A unanimous Supreme Court of Canada quashed the decision of the Commission des lésions professionnelles and held that teacher was entitled to withdraw.

Although it may seem unusual to treat schools as dangerous workplaces, it is common and accepted practice in Quebec for pregnant teachers to withdraw from the workplace because of the risk of contracting harmful diseases from their students. Reading between the lines of the present case, the school board and the CLP apparently took umbrage at the teacher's temerity in claiming her statutory rights, evidence perhaps of a disconnect between law-in-the-books and law-in-practice and lingering discomfort amongst employers about assertive employees.

Be that as it may, the most interesting aspect of the case, from an administrative-law point of view, lies in the differing approaches to the task of judicial review taken by the appellate judges involved. In my view, the Quebec Court of Appeal's stance was more appropriate than that of the Supreme Court of Canada. And of the Quebec Court of Appeal judges, the dissenting reasons of Dalphond J.A. are preferable to the majority reasons of Wagner J.A. (who is now a member of the Supreme Court, though obviously he did not sit on this appeal).

Register Now for the Nadon Reference Symposium on May 28

More details here.