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Why Call it CUPE?

A rant from a footnote in a paper I am working on, discussing amongst other things Toronto (City) v. C.U.P.E., Local 79, [2003] 3 SCR 77: Hereafter “CUPE (2003)”. I call it CUPE (2003) to distinguish it from C.U.P.E. v. New Brunswick Liquor Corporation, [1979] 2 SCR 227, which is generally referred to as “CUPE”. […] Read more

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Some Recent Papers on Reasonableness Review

Two from the collection edited by Mark Elliott and Hanna Wilberg, The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow. First, Elliott, “From Bifurcation to Calibration: Twin-Track Deference and the Culture of Justification”: Questions about substantive judicial review – its legitimacy, its appropriate intensity, its proper limits – often appear to be as intractable […] Read more

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For “Deference”, Read “Comity”?

That is one possible reaction to Timothy Endicott, “Comity Among Authorities”: An authority often needs to take account of the decisions of another authority, in order to carry out its own responsibilities. This essay outlines general principles of the approach that authorities ought to take toward the decisions of others. The most important is the […] Read more

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Would Too Many Cokes Spoil the Broth?

South of the border, more and more voices are joining the chorus of concern about the administrative state. It is difficult to trace cause and effect — administrative and executive power have long been a topic of concern on the left and right of American politics — though I suspect that President Obama’s use of […] Read more

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Discrimination, Deference and Pluralism: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39

In my view, the Supreme Court of Canada’s commitment to deference is in tension with its institutional role as the country’s highest court. According deference to administrative decision-makers means favoring legal pluralism, permitting those decision-makers to put their own spin on rules of substantive and procedural law. But a court of final resort may feel […] Read more

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Who Should Decide Procedural Fairness Questions?

The latest contributor to the growing literature on deference and procedural fairness is Adrian Vermeule in “Deference and Due Process“: In the textbooks, procedural due process is a strictly judicial enterprise; although substantive entitlements are created by legislative and executive action, it is for courts to decide independently what process the Constitution requires. The notion […] Read more