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Judicial Review and Secrecy

A new year is almost upon us. Here is a provocative thought for 2015. Does more judicial review of government action mean that more judicial review will be conducted secretively? Over recent decades, the grounds on which official action can be challenged have increased in number and scope. Legitimate expectations and factual errors are now […] Read more

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2014: Clawbies and Year in Review

Nominations are open for this year’s Canadian Law Blog Awards. I’m going to make one repeat nomination and a couple of unconventional ones. (1) Léonid Sirota (again: his constitutional law posts on Double Aspect are outstanding); (2) Colin Lachanche (he piloted CanLII Connects, which is a superb project that aims to make expert commentary and […] Read more

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Getting it Right First Time: Administrative Decision-Makers’ Participation in Judicial Review Proceedings

The extent to which administrative decision-makers should be allowed to participate in judicial review challenges to their decisions is a difficult question. On the one hand, limited participation deprives a reviewing court of important perspectives that an administrative decision-maker might be able to bring to the discussion. On the other hand, aggressive participation might — […] Read more

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The Damoclean Sword of Enforcement Discretion

President Obama recently announced a significant policy of non-enforcement of immigration law aimed at protecting the position of illegal immigrants who are on a ‘pathway’ to citizenship. There is an excellent symposium at Jack Balkin’s blog, accessible here. Simply put, President Obama’s argument is that the legislative branch has not allocated sufficient resources to apply […] Read more

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Procedural Fairness: a View from 20,000 Feet

Should courts defer to administrative decision-makers on procedural matters? As things stand (for the most part), judicial intervention is warranted whenever a decision-maker fails to live up to judicially developed conceptions of fairness. But this judicial supremacy sits uneasily with the modern, context-sensitive duty of fairness. Historically, automatic intervention whenever a decision-maker deviated from the […] Read more