Overcoming Justice Abella’s Admin Law Legacy

On the occasion of her retirement, what can we learn from Justice Abella’s administrative law generation?

All good things must come to an end, and such is the case with the careers of our Supreme Court judges. On July 1, 2021, Justice Rosalie Abella will retire. Justice Abella has been a lighting rod—for good and bad reasons—throughout her tenure on the bench. There is no doubt that she, having been a Supreme Court judge since 2004, has left her mark on various areas of Canadian law. Others will analyze Justice Abella’s legacy in those areas.

In this post, I hope to provide an assessment of Justice Abella’s legacy in the world of administrative law. For a generation, Justice Abella (even before she was on the Supreme Court–see her decision in Rasanen) was a leading Canadian administrative law thinker with skills of persuasion. While Justice Abella’s thinking on administrative law was broadly representative of the judicial and academic zeitgeist of the period starting with CUPE , time and experience have shown limitations in this thinking, and the Court has rightly begun to rollback the “innovations” of this period. The problems are two-fold: (1) Justice Abella’s notion of deference is largely based on illusory assumptions about administrative expertise; (2) Justice Abella’s notion of deference makes too much of the position of administrative actors as “partners” in the law-making enterprise, especially on constitutional questions.

I will start by outlining Justice Abella’s general theory of administrative law, as represented in extrajudicial writing and some select opinions. I will then flesh out my criticisms of Justice Abella’s administrative law legacy, showing how and why the Court was justified in Vavilov in resiling from some of the commitments demonstrated by Justice Abella through her opinions and the Court’s pre-Vavilov case law. In short, Justice Abella’s lack of skepticism about government power—particularly administrative power—simply does not register as credible in the 21st century. To develop a doctrine of deference that is attuned to the diffuse nature of administrative power, the Court must continue to overcome the administrative law commitments of Justice Abella’s generation.

***

I have written many times about the dominant mode of administrative law thinking in Canada, culminating in the jurisprudential watershed moment of CUPE. Justice Abella fits neatly in this generational movement. The so-called functionalists (people like Justice Abella, John Willis, Harry Arthurs) were high on administrative power for two overlapping reasons. First, they saw the conservative common law courts stymying administrative decision-making, which was the means used by legislatures to implement social justice policy (see, particularly, the work of Harry Arthurs). Second, they assumed that administrative actors were more expert in the administrations of their statutory schemes than courts (see , again, Arthurs). This was best represented in the Supreme Court’s Dunsmuir decision, when the Court adopted the famous quote from David Mullan, suggesting that deference “recognizes the reality that, in many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime”: see Dunsmuir, at para 49.   The net result of these two commitments is an ardent belief that administrators can render decisions, using their own techniques, that make sense of the law—and that courts should respect those decisions. For Justice Abella, then, the “Rule of Law”—which typically justified the subjection of administrative power to the law—is a formalistic legal principle that unnecessarily pits judicial power against administrative exigency. Instead, as Justice Abella says in a co-written piece with Teagan Markin, the law should inculcate a “mutually respectful relationship between the courts and administrative decision-makers” one that prizes the “legitimacy” and “authority” of administrative actors (Abella & Markin, at 272) as a “constitutional participant” (Abella & Markin, at 298).

With these commitments in mind, the Court developed a theory of deference that did just that. In the high-water mark era for epistemic deference, the Court confirmed that expertise was the most important factor influencing the selection of the standard of review (Southam, at para 50). In Dunsmuir, as noted above, respecting the institutional choice to delegate to experts was seen as a valid reason for courts to defer to administrative actors.

Justice Abella’s functionalist mindset was clearly represented in her opinions. Three are relevant. First is her decision in Newfoundland Nurses. That case—which Vavilov implicitly overruled (see Vavilov, at para 96)—permitted courts to “supplement” decisions that were otherwise deficient in their reasons (Nfld Nurses, at para 12). What was required under Nfld Nurses was a “respectful attention to the reasons offered or which could be offered…” (Nfld Nurses, at para 11 citing Dyzenhaus). The upshot of this is that courts could not quash decisions simply on the basis of the quality of the reasons alone (Nfld Nurses, at para 14) because of considerations of specialization and expertise (Nfld Nurses, at para 13). Here, we see the translation of administrative law theory into administrative law doctrine. Because Justice Abella is concerned about the legitimacy of the administrative state and undue judicial interference, she would rather courts partner with administrative decision-makers in supplementing decisions rather than subverting them.

A second example, and perhaps the most important one, is Justice Abella’s opinion for a unanimous court in Doré. Doré is important because it demonstrates the two strands of Justice Abella’s administrative law thought: pluralism and expertise. Doré basically held that when administrative decision-makers make decisions that engage constitutional rights, their decisions are entitled to deference if they represent a proportionate balancing between the relevant Charter right and the statutory objective at play (Doré, at para 57). For Justice Abella, though, Doré was more than just a technical framework. For her, Doré was “deference theory at work” (Abella & Markin, at 299) because it showed, finally, that “administrative bodies have then authority and expertise to interpret apply…legal constraints…” (299). Even on constitutional matters, typically jealously guarded by the judiciary, this was true. Indeed, it was because of the supposed (though unproven) expertise of decision-makers on constitutional questions arising in their ambit that deference was justified (Doré, at para 47).  Here, the various strands of functionalism are in full force, yielding a rather major shift in doctrine: courts must defer to administrators on constitutional matters.

Finally, Abella and Karakatsanis JJ’s opinion in Vavilov is perfectly representative of the sort of administrative law thinking that, as I will note, may be on its way out. In Vavilov, the Court implemented a number of changes to judicial review doctrine in Canada. One of these changes was a downgrading of expertise as a reflexive or presumptive deference factor (see Vavilov, at para 30). Now, there would be no assumption that “expertise” leads to deference—expertise would need to be proven through robust reasons (Vavilov, at para 31).  Additionally, the Court also clarified that in certain circumstances, the Rule of Law—as an apparently standalone, unwritten principle— would dictate that a standard of review of correctness should apply (Vavilov, at para 53 et seq). In these regards, and as I have written in other work, Vavilov  (at least in part) represents a more formalistic template of administrative law theory than what preceded it (796). For Abella and Karakatsanis JJ, this was the problem: to them, Vavilov was a “encomium for correctness and a eulogy for deference” (Vavilov, at para 201). Why? Because gone was expertise as a presumptive reason for deference, with the substitution of a “court-centric conception of the rule of law rooted in Dicey’s 19th century philosophy” (Vavilov, at para 240).

With these three cases taken together, Justice Abella’s views on administrative law can be sketched out. She often demonstrates an abiding trust in administrative decision-makers and their expertise over legal—and even constitutional—matters. This leads to a positioning of the administrative state as a partner in law-making and interpretation. Deference, put this way, is a recognition by a judicial actor of this apparently constitutional role of administrators. While this appears to be Justice Abella’s view on administrative law, it is worth noting that the Court as a whole seemed to largely accept this understanding of the relationship between courts and administrators.

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Having set out the gist of Justice Abella’s general conception of administrative law, I now wish to show three problems with this understanding. To the extent the Court, in Vavilov, has walked back this understanding of administrative law, it should be celebrated. And while Justice Abella’s Doré opinion remains on the books, there are good reasons to think that it, too, will and should be overturned.

  1. Expertise

The first issue with Justice Abella’s view of administrative law, demonstrated throughout her tenure, is its problematic assumption of expertise. As demonstrated through the Supreme Court’s pre-Vavilov case law, and in Justice Abella’s opinions, “expertise” was a woefully underdeveloped doctrinal concept that carried with it great power. Its invocation—especially in relation to well-established decision-makers like labour boards—ensconced those decision-makers with a juridical and psychological immunity from judicial scrutiny. But the Court never explained what “expertise” meant, how it could be recognized by courts, and why a presumption of expertise (as hardened in Edmonton East) was at all empirically justified.

In fact, many issues with expertise arise that Justice Abella and others never addressed. The first and obvious issue is that “expertise” on legal matters may simply not always exist as an empirical matter. The Vavilov majority recognized this reality when it stated that if expertise is simply assumed in all cases, it cannot be a doctrinal concept that meaningfully assists a court in determining whether a particular decision-maker is actually expert (Vavilov, at para 27 ). But more importantly, the presence of expertise is based on an empirical assumption: administrators, operating within the confines of their legal schemes, can best transfer their policy expertise to the world of interpretation; their expertise can inform their understanding of their own statutory scheme, and as a result, courts should defer. But this is based on a number of unproven assumptions: (1) that particular decision-makers have relevant policy expertise; (2) that relevant policy expertise is easily transferrable to skills required to interpret statutes; (3) that relevant policy expertise will necessarily shed light on what particular legislative terms mean. Without answers to these questions, it is simply speculation to suggest that administrators possess expertise that would assist them in interpreting the law.

The assumption is even stranger when one considers constitutional questions. If courts are to defer to administrative consideration of the Constitution, a few more assumptions need to be added to the mix. It must be assumed that relevant policy expertise=relevant legal expertise=relevant constitutional expertise. While the Constitution is law, it is a sui generis law that contains its own meanings, purposes, and interpretive techniques. Absent some compelling reason to think otherwise, it is mind-boggling to simply assume that line decision-makers will reliably and expertly contribute to the meaning of the Constitution.

Secondly, the obsession with expertise in the case law and in Justice Abella’s opinions fails to recognize the dark side of expertise. The administrative state is gargantuan, and it does not only include benevolent, public-minded people applying their “neutral” expertise in authentic ways. Expertise can also cut the other way: it can lead to a decision-maker taking a myopic view of constitutional values, or otherwise subordinating constitutional or other general legal principles to the narrow exigencies of what is required by administrative “expertise” (see for example, Kerr, at 260).  Interestingly, Kerr writes in the prison context, where there is a professional environment that systematically values control over the exercise of constitutional rights–and where concerns about assumptions of expertise are grave, indeed (see the factum of the Queen’s Prison Law Clinic in Vavilov). A lack of familiarity with constitutional norms, and a professional environment that may not inhere respect for those norms, does not inspire confidence. Indeed, the Doré framework—which places constitutional “values” and statutory objectives on the same playing field, despite the hierarchy of laws—will underpower rights because it fails to accord priority to constitutional rights over administrative objectives (see the dissent of Brown and Cote JJ in TWU, at para 206).

Finally, Justice Abella’s deployment of the “expertise” label may have led her to undervalue the importance of reasoning in determining the legality of administrative decision-makers. Doré is an example of this undervaluing. In Doré, Justice Abella did not provide any detail on the standards to be used in determining whether an administrator’s reasoning met constitutional standards. It was enough  that administrator to “balance” (whatever that means) rights and objectives; indeed, in some cases, the administrator need only be “alive” to the Charter issues (TWU, at para 56). As I will note below, this is an empty theory of deference. It tends towards abdication based on faith in expertise rather than respectful deference. Relying on expertise as a faith-based reason for deference should not exclude the requirement for proper reasoning, as Vavilov confirms.

Now, the fact that administrators may not have expertise may not be fatal for Justice Abella. In her Vavilov opinion with Karakatsanis J, the judges note that internal administrative training could be a fix (see Vavilov, at para 283) rather than authorizing “more incursions into the administrative system by generalist judges who lack the expertise necessary to implement these sensitive mandates (Vavilov, at para 283). This is a nice thought, but it is a bit like allowing the fox to guard the henhouse. There is no reason to assume, without more, that administrators will undergo training sufficient to understand the Constitution, for example. Even if there was, internal training is clearly no substitute for judicial review by generalist judges. It is the very fact that judges are generalist that makes them well-suited to ensure that general legal concerns—like the Constitution—find expression in discrete administrative regimes, with their own internal pressures. And as a matter of law, judicial review must exist. In an ideal world, we would expect administrators to structure their discretion through robust legal training, and we would expect courts to act as a backstop.

2. Pluralism

A second theme seen throughout Justice Abella’s opinions is a focus on legal pluralism. As noted above, the idea is that administrators should be seen as valid contributors to the meaning of the law and Constitution—and thus, courts should not take a supervisory or command-and-control position vis-à-vis the administrative state.

Now, it should be noted that this theme presents two distinct questions. First is whether administrators should have the power to render binding interpretations of law and the Constitution. This normative point, however interesting, is somewhat moot, in part because of the success of Justice Abella’s administrative law theory over the years. Administrators, as a matter of law, do have the power to render binding interpretations of law & the Constitution, if they are delegated the power to do so (see Martin & Conway). In my view, the ability of administrators to do so is legitimate and legal. On ordinary questions of law, the legislature has validly delegated power to administrators to decide these questions in many cases. This legislative choice must be respected absent constitutional objection. On constitutional questions, the issue is trickier, but I can certainly concede that administrators should be able to render interpretations of constitutional law as a function of their subjection to constitutional norms. In other words, if the Constitution is seen as binding on all state actors (as it should be), then it is inevitable that administrators will need to deal with the Constitution. When they do so, they are determining whether the bounds of the Constitution hem in their decision-making power. This calculation is essential if administrative actors are to be bound by the law and the Constitution.

So far as this goes, the administrative state can contribute to the meaning of law. But not too much should be made of this statement. That is because, as a matter of fact and law, administrators and judges are not on an equal playing field. Judicial review necessarily implies a relationship where one body (the court) has the authority and power to correct and surveil another body (the administrator). As a matter of law, that supervisory jurisdiction must remain (see Crevier), and it may even need to occur at a certain stringency on certain questions. As a result, there can never be a perfect equality between administrators and courts, as Justice Abella suggested.

In this way, Vavilov is a drastic improvement over what preceded it. Vavilov clearly states that administrators can and do contribute to the meaning of law, even if judicial justice does not resemble administrative justice (see Vavilov, at para 92). As far as it goes, this is an accurate descriptive statement that acknowledges the current state of Canadian administrative law. But Vavilov does not counsel abdication to administrative power. It instead insists on stringent reasoning requirements, particularly as regards the law (see Vavilov, at para 108 et seq) with only a small margin for error (Vavilov, at para 122). By doing so, it ensures that courts have standards by which they can assess administrative exercises of power, without unduly trenching on jurisdiction delegated to an actor besides the courts.

What we see here is a difference between deference as rooted in the supervisory role of the courts and deference rooted in some external appreciation of the administrative state. In our constitutional system, it is simply the reality that there must be judicial review. The way courts review administrative action puts them in a supervisory position over delegated power. This hierarchy is inescapable. Courts can–and have–developed doctrines of deference based on notions of legislative supremacy. But that doctrine of deference is quite different than one based on expertise. In the former case, deference is plausibly rooted in a exercise of constitutional power by a coordinate branch of government. Deference is not justified by a court assuming–without more–that a decision-maker could come to a “better” decision than the court. As a side note, all of this makes the last piece of Justice Abella’s administrative law legacy–Doré –vulnerable. As I wrote in this paper, the downgrading of expertise as a reflexive reason for deference and the role of the Rule of Law in anchoring the standard of review (correctness on constitutional questions) at least raise the question of Doré ‘s long-term health.

Justice Abella, in her recent co-authored article, argues that such assertions on the basis of formal constitutional materials provide no answer to her conception of administrative law. She and her co-author note that the Secession Reference, which gave a place of priority to unwritten principles of constitutional interpretation, “acknowledges the political nature of law and embraces the idea that although the government is of course constrained by legality, legality is itself a political question capable of sustaining several answers” (295). To the authors, the Secession Reference ushers in a new era that demonstrates that all institutions can take part in the making of law, lending new legitimacy to the administrative state. So, an argument as I have made on the basis of the Constitution–to the authors–is a non-starter.

Needless to say, I find this retort particularly unconvincing for a number of reasons. First, whether law is “political” or not is besides the point. While law is the product of politics, interpretive pluralism should not be taken as an excuse to simply favour the decision-makers that form the political valence we may prefer. It is the legislature’s political choices–not the court’s–that are relevant in determining the space for deference.

Secondly, Vavilov throws a ton of cold water on Justice Abella’s understanding of the Secession Reference. The Secession Reference endorses the Rule of Law as an unwritten principle of constitutional law that can give rise to substantive obligations. To the Court in its various cases, the Rule of Law is understood in a formal sense, as having to do with the subjection of government power to rules in a system of positive laws (see Secession Reference, at para 71). This is a largely formal understanding of the Rule of Law. As an analogue to this understanding, the Court has held that the Rule of Law and s.96 Constitution Act, 1867 together protect the role of the superior courts in conducting judicial review (see, again, Crevier) and protecting core superior court powers (see MacMillan Bloedel). This formal understanding of the Rule of Law was extended in Vavilov. The Court held that legislatures were not free to set up the administrative state as theu wished: legislatures could only specify the standard of review “within the limits imposed by the Rule of Law” (Vavilov, at para 35).

This understanding of the Rule of Law as an unwritten principle, and its relationship to administrative pluralism, should not be understated. Under this understanding, the Rule of Law protects not only the existence of judicial review, but it prevents legislatures from insulating administrative actors from curial scrutiny at a certain intensity on certain questions. The fact that the Rule of Law and s.96 are understood in this way serve to make a point: it would be unconstitutional, in fact, for legislatures to make administrators perfectly equal to superior courts, in a legal sense. The role of superior courts is protected constitutionally, in part, because of its importance in maintaining the Rule of Law. This invites a hierarchical relationship between courts and administrative decision-makers.

All told, the retirement of Justice Abella will be a landmark moment for the Court in many ways. And given Justice Abella’s popularity in the legal community, I have no doubt her retirement will be appropriately marked. But, as lawyers, the retirement of a prominent judge presents us an opportunity to review the body of her work. In the world of administrative law, Vavilov represents the first major effort to overcome Justice Abella’s persuasive legacy. This is welcome.

No matter what, I wish Justice Abella well on her retirement.

Author: Mark Mancini

I am a PhD student at Allard Law (University of British Columbia). I am a graduate of the University of New Brunswick Faculty of Law (JD) and the University of Chicago Law School (LLM). I also clerked at the Federal Court for Justice Ann Marie McDonald. I have interests in: the law of judicial review, the law governing prisons, and statutory interpretation.

9 thoughts on “Overcoming Justice Abella’s Admin Law Legacy”

  1. The premises of this blog post are farcically wrong.

    1. Vavilov doubles down on expertise being a central reason and feature of judicial deference to administrative decision-making.

    2. Vavilov gave no indication whatsoever, and in fact expressly repudiated the suggestion, that Doré was in any way affected by or germane to the recalibration of the standard of review analysis in Vavilov. Doré — a unanimous 9-0 decision — will not be overturned after Abella J.’s retirement as neither of the two Bedford/Carter justifications for departing from binding precedent are present.

    3. Newfoundland Nurses — and the parts Vavilov refined — is not something Abella invented out of whole cloth. Her reasons in Nurses expressly link back to Dunsmuir and Khosa for the proposition that the reviewing court must supplement reasons before seeking to undermine them. By departing from Nurses, Vavilov did not repudiate anything Abella J is wholly responsible for, the Court merely refined Dunsmuir and its progeny. Recall that Abella did not author Dunsmuir. See evidence below:

    NEWFOUNDLAND NURSES
    [11] It is worth repeating the key passages in Dunsmuir that frame this analysis:

    Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

    . . . What does deference mean in this context? Deference is both an attitude of the court and a requirement of the law of judicial review. It does not mean that courts are subservient to the determinations of decision makers, or that courts must show blind reverence to their interpretations, or that they may be content to pay lip service to the concept of reasonableness review while in fact imposing their own view. Rather, deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law. The notion of deference “is rooted in part in respect for governmental decisions to create administrative bodies with delegated powers” . . . . We agree with David Dyzenhaus where he states that the concept of “deference as respect” requires of the courts “not submission but a respectful attention to the reasons offered or which could be offered in support of a decision” . . . . [Emphasis added; citations omitted; paras. 47-48.]

    [12] It is important to emphasize the Court’s endorsement of Professor Dyzenhaus’s observation that the notion of deference to administrative tribunal decision-making requires “a respectful attention to the reasons offered or which could be offered in support of a decision”. In his cited article, Professor Dyzenhaus explains how reasonableness applies to reasons as follows:

    “Reasonable” means here that the reasons do in fact or in principle support the conclusion reached. That is, even if the reasons in fact given do not seem wholly adequate to support the decision, the court must first seek to supplement them before it seeks to subvert them. For if it is right that among the reasons for deference are the appointment of the tribunal and not the court as the front line adjudicator, the tribunal’s proximity to the dispute, its expertise, etc, then it is also the case that its decision should be presumed to be correct even if its reasons are in some respects defective. [Emphasis added.]

    (David Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in Michael Taggart, ed., The Province of Administrative Law (1997), 279, at p. 304)

    KHOSA
    [63] The Dunsmuir majority held:

    A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [para. 47]

    Dunsmuir thus reinforces in the context of adjudicative tribunals the importance of reasons, which constitute the primary form of accountability of the decision-maker to the applicant, to the public and to a reviewing court. Although the Dunsmuir majority refers with approval to the proposition that an appropriate degree of deference “requires of the courts ‘not submission but a respectful attention to the reasons offered or which could be offered in support of a decision’” (para. 48 (emphasis added)), I do not think the reference to reasons which “could be offered” (but were not) should be taken as diluting the importance of giving proper reasons for an administrative decision, as stated in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 43.

    In short, more cheapshots at Abella from the peanut gallery.

    1. Hello Cornelius,

      Just a question: would you consider para 30 of Vavilov as an example of “doubling down” on expertise? I read that paragraph as retaining expertise as a factor, but making it non-presumptive–there is no longer a presumption of expertise a la Edmonton East. This is a major doctrinal shift.

      1. Paragraph 30 deals with the abandonment of the contextual approach to determining standard of review, under which expertise was to be considered as an explicit factor militating in favour of reasonableness. Paragraph 30 says that this is no longer required but concedes that administrative expertise is one of the reasons why legislatures may, in the first place, delegate decision-making to bodies other than courts. There is nothing new here, nor is there a doctrinal shift. Expertise is accepted as part of why courts ought to defer, even though they are no longer required to explicitly consider this when determining standard of review. The presumption of reasonableness review applying before and after Vavilov has long been premised on expertise, and explains things like the presumption of deference on admin decision makers interpreting and applying their home statutes. So no, no major doctrinal shifts at all. Vavilov refined what was there post-Dunsmuir; Dunsmuir is very much still alive post-Vavilov.

      2. The main shift in Vavilov, if you read paras 27 and 30 together, is the change of theoretical basis for the presumption of reasonableness. It used to be presumed that deference was justified because of a blanket assumption of expertise. Now it is the formal fact of delegation itself. As para 30 says, courts need not make the old assumption on expertise, because as para 27 says, the assumption isn’t useful. Administrators must now demonstrate expertise. We have gone from assumed to demonstrated expertise.
        I think this constitutes a doctrinal shift, as Abella and Karakatsanis JJ note in concurrence.

      3. But in other regards I agree that Dunsmuir is obviously still relevant.

      4. A key interpretative question about the majority in Vavilov is whether they are really making the doctrinal shift Abella and Karakatsanis accuse them of, since they themselves deny it. There is obviously a formalist-realist spectrum on the SCC, with Brown, Rowe and Côté on the formalist end and Abella, Martin and Karakatsanis on the realist end. (Not wanting to use “formalist” – or “realist” for that matter – as a pejorative). The majority decision in Vavilov is I think a formalist-influenced synthesis of a realist era of jurisprudence. I think this is part of why it is such a strong decision.

  2. Hi Mark,

    It is great to see such a thoughtful reflection. I hope and trust these blog posts are going to be incorporated into a law review article, but I also think it is great that this level of analysis is getting out there in this format.

    I am more sympathetic with the Willis/Arthurs/Abella school of thought than you are and suspicious of the idea that less discretion and more rules in governance will really lead to more freedom. To take the prison context, it is at least as possible that inmates will be abused by a Rechstaat-inspired bureaucratism that makes it impossible to have human interactions as they will be by discretion. At minimum, they *both* have dangers. The “Kafkaesque” world is, after all, one in which everyone is following impersonal rules and disclaiming authority for what they are doing.

    I agree with you that it is a problem to think about the use of power as a matter of “expertise” – that was a bad way to justify the Willis/Arthurs/Abella approach. The classic example of expertise is the physical scientist. But because science can only result in descriptive, not prescriptive, truths, it is never possible to “just follow the science.” When government gets conceptualized as a science, it becomes tyrannical. “Marxism Leninism” is the most extreme example, but it is inherent in the idea because an experimental scientist is somebody who randomly assigns units and gives “treatment” and “controls” to each of the units. This is not troubling when the units are particles, but if the units are people, then you have at minimum a caste society and quite possibly a totalitarian one.

    I don’t think that is what Willis, Arthurs or Abella were getting at. Instead of “expertise”, they probably should have used the concept of “implicit knowledge.” Various thinkers have emphasized the point that much of what humans know is not what they can put into explicit propositional form, but is embodied in their ability to conduct a practice skillfully. Hayek, as an enemy of the administrative state, had this as one of his major themes – the reason central planning cannot work is that the planner can only get information that can be explicitly stated, but most of the information necessary to run an economy is actually implicit and necessarily decentralized.

    Arthurs’ paradigm example was arbitration/mediation in the mostly-Jewish textile industry in postwar Toronto. Some WASP judge who went to UCC and then Osgoode Hall was not better placed to resolve differences between unions and management. Neither would the world’s highest IQ socialist law professor. Arthurs generalized this to note that a lot of “bureaucrats” working with statutory schemes ended up knowing a lot more about them – how they work in practice and even how the text fits together – than higher status judges.

    This is where I have to lodge a respectful disagreement with the approach I think you and (definitely) Leonid favour. Just as scientific expertise is a bad model for administration, I think it is also a bad model for interpreting statutes. Statutes are wrapped in various legal maxims, but they are fundamentally uses of natural language to accomplish changes in the social world. I am skeptical that there is really some science of interpretation that can be explicitly formulated and taught to expert judges the way that there really is a science of quantum mechanics that can be taught to very bright young people with little experience of the “real world”. Law students want there to be, but there isn’t.

    To be sure, there *are* problems with tight-knit communities with lots of implicit knowledge. These also have pathologies in terms of treatment of those who are outsiders to those communities. The prison context is a good example here: people in the correctional system have implicit knowledge and some of their feeling that lawyers and judges are high-status know-it-alls who wouldn’t last a minute is, I am sure, justified. At the same time, excessive deference on the basis that they know what they are doing would amount to writing inmates out of the social contract altogether – something we of course have a general social tendency to do.

    Justice Abella was far more attuned to this problem than John Willis certainly and perhaps Harry Arthurs. My sense is she does not think there is some explicit manual of “legality” that will solve this problem. You need oversight and the oversight needs to be reasonable. There isn’t much more to say than that.

    The problem with this approach is that it means that judicial disagreement itself is ultimately arational. It just comes down to how nine people vote. I agree that Vavilov was an attempt to give more contours to reasonableness – but I think it also (wisely) recognized the element of truth in the Willis/Arthurs/Abella critique of the old Diceyan ways.. I am not suggesting we now have the perfect synthesis that will lead to the end of administrative law history. But I do feel you do not give enough weight to the fact that governing – whether by administrators or judges – can never be enitrely explicit.

  3. Let me say a few words in defence of Doré because I agree that it is under threat – but I think that is a bad thing.

    If we should be skeptical that there is a quasi-scientific or technical expertise in statutory interpretation, I think we should be *even more* skeptical of the idea that there is such an expertise in deciding when the inevitable limits on freedom implicit in organized society are “demonstrably justified in a free and democratic society.” This is not to say that judicial forensic processes can never play a beneficial role in this respect. But as somebody who has read a lot of Canadian constitutional law, I am pretty sure it is nothing like a science or even like a relatively technical branch of law such as bankruptcy or utility rate regulation.

    A law society disciplinary panel has no choice but to balance free expression and civility in the profession. Further, there is no single right way to do this for all time. I can see court review usefully pointing out that a disciplinary panel did not appear to give enough weight to free expression. But I cannot see it deducing from first principles whether a letter from a lawyer to a judge goes “over the line” or not in a way that is detached from the cultural expectations local to the time and place. I therefore think Doré is an important achievement and that it actually works quite well with the majority decision in Vavilov, which recognizes “legal constraints” as central to the reasonableness analysis.

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