The Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 represents a response to a pair of problems which have plagued Canadian administrative lawyers for decades: selecting the standard of review and applying the reasonableness standard. More broadly, however, the articulation of reasonableness review in Vavilov fits into a much larger picture of the seemingly inexorable rise – in Canada and elsewhere in the common law world – of a “culture of justification” in administrative law. Despite the culture of justification’s contemporary status, and a significant amount of scholarship on its benefits, what it actually consists of remains somewhat obscure. Adopting a descriptive and analytical approach, I seek to describe and analyze the culture of justification in contemporary administrative law, with particular reference to the majority reasons in Vavilov. I suggest in Part I that the four strands of reasonableness review woven together by the majority in Vavilov – reasoned decision-making, responsiveness, demonstrated expertise and contextualism – provide an account of the culture of justification. In Part II, I expand on the discussion of Vavilov, a case concerned with substantive review – the assessment of the reasonableness of administrative decisions – and describe how the culture of justification has permeated other areas of administrative law, such as procedural fairness, justiciability and standing. I then venture, in Part III, to explain why the culture of justification has risen to such prominence in contemporary administrative law. Focusing on endogenous rather than exogenous factors I identify the development of general principles of administrative law and the expanded record of administrative decision-making as likely contributors, hypothesizing that expansive reason-giving and record generation have caused more exacting standards of reasonableness and fairness. Finally, in Part IV, I assess the future prospects of the culture of justification. Noting that a culture of authority had crept into substantive review in Canadian administrative law in the years leading up to Vavilov, I suggest that the majority’s approach represents a repudiation of claims to authority based on political legitimacy, expediency and technocratic expertise. Finally, having bracketed normative questions at the outset, I return to address them in the Conclusion, arguing that there are good normative reasons to support a culture of justification in administrative law, grounded in the rule of law and democracy, two of the unwritten principles of the Canadian constitutional order.
{"title":"Vavilov and the Culture of Justification in Contemporary Administrative Law","authors":"P. Daly","doi":"10.60082/2563-8505.1422","DOIUrl":"https://doi.org/10.60082/2563-8505.1422","url":null,"abstract":"The Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 represents a response to a pair of problems which have plagued Canadian administrative lawyers for decades: selecting the standard of review and applying the reasonableness standard. More broadly, however, the articulation of reasonableness review in Vavilov fits into a much larger picture of the seemingly inexorable rise – in Canada and elsewhere in the common law world – of a “culture of justification” in administrative law. Despite the culture of justification’s contemporary status, and a significant amount of scholarship on its benefits, what it actually consists of remains somewhat obscure. Adopting a descriptive and analytical approach, I seek to describe and analyze the culture of justification in contemporary administrative law, with particular reference to the majority reasons in Vavilov. \u0000 \u0000I suggest in Part I that the four strands of reasonableness review woven together by the majority in Vavilov – reasoned decision-making, responsiveness, demonstrated expertise and contextualism – provide an account of the culture of justification. In Part II, I expand on the discussion of Vavilov, a case concerned with substantive review – the assessment of the reasonableness of administrative decisions – and describe how the culture of justification has permeated other areas of administrative law, such as procedural fairness, justiciability and standing. I then venture, in Part III, to explain why the culture of justification has risen to such prominence in contemporary administrative law. Focusing on endogenous rather than exogenous factors I identify the development of general principles of administrative law and the expanded record of administrative decision-making as likely contributors, hypothesizing that expansive reason-giving and record generation have caused more exacting standards of reasonableness and fairness. Finally, in Part IV, I assess the future prospects of the culture of justification. Noting that a culture of authority had crept into substantive review in Canadian administrative law in the years leading up to Vavilov, I suggest that the majority’s approach represents a repudiation of claims to authority based on political legitimacy, expediency and technocratic expertise. \u0000 \u0000Finally, having bracketed normative questions at the outset, I return to address them in the Conclusion, arguing that there are good normative reasons to support a culture of justification in administrative law, grounded in the rule of law and democracy, two of the unwritten principles of the Canadian constitutional order.","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2020-06-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82019046","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-02-29DOI: 10.1017/9781108682428.009
{"title":"Going Public on Supreme Court Cases before the Modern Presidency","authors":"","doi":"10.1017/9781108682428.009","DOIUrl":"https://doi.org/10.1017/9781108682428.009","url":null,"abstract":"","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2020-02-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80081719","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Flowers v Mississippi is a Supreme Court case about a man who was tried six times for the same crimes. The trials took place over a span of twenty-one years. In four of the trials, there was a conviction, but appellate courts reversed because of prosecutorial misconduct. In the other two trials, the jury was unable to reach a unanimous verdict, and the judge declared a mistrial. Curtis Flowers was charged with murdering four people—Robert Golden, Carmen Rigby, Bertha Tardy, and Derrick Stewart—in a small town in Mississippi. Mr. Flowers is African American. Doug Evans, the district attorney who was the lead prosecutor in all six trials, is white. Winona, Mississippi, where the killings occurred, is roughly 53 percent black and 46 percent white.
{"title":"Mississippi Goddamn: Flowers v Mississippi’s Cheap Racial Justice","authors":"P. Butler","doi":"10.1086/708458","DOIUrl":"https://doi.org/10.1086/708458","url":null,"abstract":"Flowers v Mississippi is a Supreme Court case about a man who was tried six times for the same crimes. The trials took place over a span of twenty-one years. In four of the trials, there was a conviction, but appellate courts reversed because of prosecutorial misconduct. In the other two trials, the jury was unable to reach a unanimous verdict, and the judge declared a mistrial. Curtis Flowers was charged with murdering four people—Robert Golden, Carmen Rigby, Bertha Tardy, and Derrick Stewart—in a small town in Mississippi. Mr. Flowers is African American. Doug Evans, the district attorney who was the lead prosecutor in all six trials, is white. Winona, Mississippi, where the killings occurred, is roughly 53 percent black and 46 percent white.","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1086/708458","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48983969","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this Article, we ask whether some liberal justices have followed a strategy of judicial appeasement in recent cases involving religious freedom, especially under the Establishment Clause. We begin by specifying a conception of appeasement, which we define as a sustained strategy of offering asymmetric concessions for the purpose of avoiding further conflict, but with the self-defeating effect of emboldening an adversary to take more assertive actions. This conception is a general one, and to avoid confusion, we disclaim moral comparisons to historic instances. We then apply this conception to leading cases in three areas of doctrine: government religious speech (with special attention to the Bladensburg Cross case), state funding of religion, and religious exemptions. Across these cases, a pattern of decision-making has emerged that provides evidence of judicial appeasement by some liberal justices. We then argue that appeasement carries risks for worsening legal outcomes, legitimating bad decisions, and shifting the set of feasible constitutional options. In response, it might be objected that liberal justices are not engaging in appeasement but rather in strategies of compromise or cooptation. Although these alternatives have some plausibility, we argue that the pattern of decision-making in recent religious freedom cases should raise concerns about appeasement and the risks associated with it.
{"title":"Establishment Clause Appeasement","authors":"Micah Schwartzman, N. Tebbe","doi":"10.1086/708635","DOIUrl":"https://doi.org/10.1086/708635","url":null,"abstract":"In this Article, we ask whether some liberal justices have followed a strategy of judicial appeasement in recent cases involving religious freedom, especially under the Establishment Clause. We begin by specifying a conception of appeasement, which we define as a sustained strategy of offering asymmetric concessions for the purpose of avoiding further conflict, but with the self-defeating effect of emboldening an adversary to take more assertive actions. This conception is a general one, and to avoid confusion, we disclaim moral comparisons to historic instances. We then apply this conception to leading cases in three areas of doctrine: government religious speech (with special attention to the Bladensburg Cross case), state funding of religion, and religious exemptions. Across these cases, a pattern of decision-making has emerged that provides evidence of judicial appeasement by some liberal justices. We then argue that appeasement carries risks for worsening legal outcomes, legitimating bad decisions, and shifting the set of feasible constitutional options. In response, it might be objected that liberal justices are not engaging in appeasement but rather in strategies of compromise or cooptation. Although these alternatives have some plausibility, we argue that the pattern of decision-making in recent religious freedom cases should raise concerns about appeasement and the risks associated with it.","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1086/708635","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44117829","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article assesses where the Supreme Court stands on administrative law after the 2018 term, focusing on Kisor v. Wilkie and Department of Commerce v. New York. Over the last decade, the Roberts Court had demonstrated increasing concerns about an out-of-control federal bureaucracy at odds with the constitutional order, but hadn’t pulled back significantly on administrative governance in practice. The 2018 term provided the Court with a chance to put its might where its mouth was. Yet administrative law’s denouement did not come; established administrative law doctrines remain in force, albeit narrowed. The 2018 Term cases demonstrate that the Roberts Court is deeply divided on administrative law along clear ideological lines. The cases also illuminate several core analytic themes and tensions in the Roberts Court’s administrative law jurisprudence, in particular disagreements over: the relationship of law and policy; formalism and nonformalism; the role of history; and administrative common law versus Administrative Procedure Act originalism. Taking a further step back, two contrasting frames emerge from the Roberts Court’s 2018 term administrative law opinions. One is radical, with a categorical and uncompromising formalism, commitment to limited government and aggressive judicial review, insistently originalist stance, and rejection of contemporary judicial review doctrines as at odds with traditional understandings of judicial power and the meaning of the APA. The other is incrementalist and common law in character, encompassing justices with a broader range of views about constitutional structure and administrative government but united in their unwillingness to disrupt existing governance regimes, at least not all at once. Which of these analytic frames will ultimately prevail still remains an open question, but incrementalism was plainly the victor in the 2018 Term’s administrative law decisions. That is significant, but should also not obscure that there was unity across the Court in urging greater judicial scrutiny of administrative action. Moreover, despite invocations of the importance of bureaucratic expertise, these decisions share the concerns with unaccountable, aggrandized, and arbitrary administrative power that characterize the Roberts Court’s administrative jurisprudence more widely. Notably lacking is reference to the ways that the administrative state operates to constrain power, render it accountable, and advance individual liberty. Absent a more balanced view of the administrative state, the Roberts Court is unlikely to develop a coherent approach to administrative law.
{"title":"The Roberts Court and Administrative Law","authors":"Gillian E. Metzger","doi":"10.1086/708146","DOIUrl":"https://doi.org/10.1086/708146","url":null,"abstract":"This article assesses where the Supreme Court stands on administrative law after the 2018 term, focusing on Kisor v. Wilkie and Department of Commerce v. New York. Over the last decade, the Roberts Court had demonstrated increasing concerns about an out-of-control federal bureaucracy at odds with the constitutional order, but hadn’t pulled back significantly on administrative governance in practice. The 2018 term provided the Court with a chance to put its might where its mouth was. Yet administrative law’s denouement did not come; established administrative law doctrines remain in force, albeit narrowed. \u0000 \u0000The 2018 Term cases demonstrate that the Roberts Court is deeply divided on administrative law along clear ideological lines. The cases also illuminate several core analytic themes and tensions in the Roberts Court’s administrative law jurisprudence, in particular disagreements over: the relationship of law and policy; formalism and nonformalism; the role of history; and administrative common law versus Administrative Procedure Act originalism. Taking a further step back, two contrasting frames emerge from the Roberts Court’s 2018 term administrative law opinions. \u0000 \u0000One is radical, with a categorical and uncompromising formalism, commitment to limited government and aggressive judicial review, insistently originalist stance, and rejection of contemporary judicial review doctrines as at odds with traditional understandings of judicial power and the meaning of the APA. The other is incrementalist and common law in character, encompassing justices with a broader range of views about constitutional structure and administrative government but united in their unwillingness to disrupt existing governance regimes, at least not all at once. \u0000 \u0000Which of these analytic frames will ultimately prevail still remains an open question, but incrementalism was plainly the victor in the 2018 Term’s administrative law decisions. That is significant, but should also not obscure that there was unity across the Court in urging greater judicial scrutiny of administrative action. Moreover, despite invocations of the importance of bureaucratic expertise, these decisions share the concerns with unaccountable, aggrandized, and arbitrary administrative power that characterize the Roberts Court’s administrative jurisprudence more widely. Notably lacking is reference to the ways that the administrative state operates to constrain power, render it accountable, and advance individual liberty. Absent a more balanced view of the administrative state, the Roberts Court is unlikely to develop a coherent approach to administrative law.","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1086/708146","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43776544","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"From Ford v. Québec to the Act Respecting the Laicity of the State : A Distinctive Quebec Theory and Practice of the Notwithstanding Clause","authors":"F. Côté, G. Rousseau","doi":"10.60082/2563-8505.1391","DOIUrl":"https://doi.org/10.60082/2563-8505.1391","url":null,"abstract":"","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80419857","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Consultation, Cooperation and Consent in the Commons’ Court: “Manner and Form” after Mikisew Cree II","authors":"C. Scott","doi":"10.60082/2563-8505.1379","DOIUrl":"https://doi.org/10.60082/2563-8505.1379","url":null,"abstract":"","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88815261","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Williams Lake and Mikisew Cree: Update on Fiduciary Duty and the Honour of the Crown","authors":"Richard Ogden","doi":"10.60082/2563-8505.1381","DOIUrl":"https://doi.org/10.60082/2563-8505.1381","url":null,"abstract":"","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86608135","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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