Administrative Law Matters

Commentary on developments in administrative law, particularly judicial review of administrative action by common law courts.

From Blogger

Deference on the SCOTUS

Much of the focus on the Supreme Court of the United States recently has been on the hot-button topic of same-sex marriage. But the Court has also released some interesting administrative law decisions in recent weeks. The End of Auer Deference: Administrative Interpretations of Regulations I previously posted some sceptical thoughts on the continuing applicability […] Read more

From Blogger

Deference and Reasonableness

In Canada, it is gradually becoming clear that the Supreme Court wants reviewing courts to presume that the standard of review of administrative action is reasonableness. The Court has not been perfectly clear about its intentions, however, so there are still pockets of resistance (see my articles here and here for discussion). As I suggest […] Read more

From Blogger

The Enlightenment of Administrative Law: Looking Inside the Agency for Legitimacy

In Sidney Shapiro, Elizabeth Fisher and Wendy Wagner’s fascinating article, they contrast the “rational-instrumental” model of administrative decision-making, which they describe as dominant, with the “deliberative-constitutive” model, which they prefer. If you are interested in the legitimacy of the administrative state, the article is a must-read. Under the former model, “agency accountability is ensured by […] Read more

From Blogger

Prescribing Greater Protection for Rights: Administrative Law and Section 1 of the Canadian Charter of Rights and Freedoms

My paper for this Saturday’s conference at the University of Ottawa in honour of Justice Charron is now available on SSRN. You can download it here. To whet your appetite, here is the abstract: In interpreting the “prescribed by law” requirement contained in section 1 of the Charter of Rights and Freedoms, Canadian courts have […] Read more

From Blogger

Delegating Investigative Functions

A well-known rule of administrative law is delegatus non potest delegare: the beneficiary of a statutory power cannot delegate its exercise. This is only a rule of construction, though, and is subject to the famous Carltona exception, pursuant to which civil servants can act in the name of a minister named in a statute. A […] Read more

From Blogger

Pastagate: Enforcement Discretion

Language is the third rail of Canadian politics, so it is with some trepidation that I wander out onto the tracks to muse on enforcement discretion in the wake of recent controversy about the Charter of the French Language and the Office québécois de la langue française. “Pastagate” arose when the OQLF conducted an inspection […] Read more