Double Aspect’s Twelve Days of Christmas

Announcing a riotous blogging symposium for the festive season

As the holidays are upon us, co-blogger Mark Mancini and I would like to invite you to join our very special celebration. In our capacity as the self-proclaimed lords of misrule of the Canadian legal blogosphere, we will be reviving the old tradition of festive subversion by marking the twelve days of Christmas with a blogging symposium highlighting Canadian legal scholars’ least favourite Supreme Court decisions.

Borrowing a model recently suggested by Damon Root for Reason, we have asked Canadian legal thinkers for lists of five particularly bad public law decisions from the period 1967-2017 (we decided to exclude this year’s cases to avoid too much bias in (dis)favour of the ones fresh on everyone’s mind), accompanied by brief reminders of what they were about and explanations about why they deserved to make the list. We will be taking a “large and liberal” approach to what counts as public law, and have invited contributors to use their own criteria for what makes decisions bad and worse. The only limit, other than the time range, that we have asked them to respect is that the decisions they list should not have been overturned.

Speaking of contributors, we are very grateful to all those who have agreed to take part. This was a bit of a last-minute idea, and it was very kind of people to take time, on short notice, out their busy pre-holiday schedules to join the fun here. In no particular order, the guests who will partying with us are:

  • Geoff Sigalet
  • Bruce Pardy
  • Gerard Kennedy
  • Kerri Froc
  • Asher Honickman
  • Joanna Baron
  • Maxime St-Hilaire
  • Michael Plaxton
  • Dwight Newman

For most (all, in fact, except for Professor St-Hilaire) this will be a first appearance on Double Aspect, and we are delighted to welcome them here in such festive circumstances. And of course Mark and I will be taking part in the celebrations too.

Now, perhaps you’ve noticed that this only adds up to 11 participants. One person, sadly, had to pull out at the last moment. We thus have a spot to fill. If you feel up to the task of penning a contribution quickly, please get in touch! If not Mark and I will round-up the proceedings with some concluding observations on Day 12.

Welcome, Mark Mancini

Introducing a co-blogger

For the last six-odd years, Double Aspect has mostly been a one-man show. (I have at times wondered whether the blog’s name was inappropriate as a result, but no one seemed to mind.) While it has been my privilege to welcome guest posts from time to time, and to co-host a blogging symposium on The Dunsmuir Decade, I have mostly carried the ball myself. But today I am very pleased to introduce Mark Mancini as a co-blogger.

Mark has just finished his clerkship at the Federal Court of Canada (where I clerked too, once upon a time), and is headed to the University of Chicago for an LLM. But while he is still in the process of adding letters after his name, Mark is already a rising star in Canadian public law. His work has appeared in the UNB Law Journal, on Advocates for the Rule of Law, and, just today, on the Admin Law Blog. Mark has also published a couple of posts on Double Aspect ― with a post on the Khadr settlement last year, and, more recently, an excellent contribution to the Dunsmuir symposium. In short, Mark is very much someone to keep an eye on ― and now you can do so right here on Double Aspect.

I know that, like me, Mark is committed to serious thinking about the law, and that he takes his responsibilities towards both doctrine and la doctrine very seriously indeed. I am confident that with him on board, Double Aspect will be better positioned to discharge these responsibilities, and that its quality, as well as output, will improve noticeably. Welcome, Mark!

The Dunsmuir Decade: A Post-Script

In the wake of the #DunsmuirDecade, updated thoughts on blogs and doctrine

The Dunsmuir Decade symposium is over. It’s been great fun to host, and has provided a great deal of food for thought for me and, I am sure, for others. I might come back in future posts to some substantive points made by the contributors. And of course I need to return to my regular constitutional programming, which I have held in abeyance all this while. But before I do so, I wanted to venture a meditation on what the symposium itself means or represents.

Among the many kinds of writing that legal academics produce, there is a special genre of writing about legal writing; and one of its sub-genres is writing about legal blogs. It asks questions such as whether blogs deserve to be considered among the media through which legal scholarship can be communicated; their distinctiveness, if any, among such media; the way, if any, in which blogs can meet the needs of the legal profession or of others with whom it interacts in one way or another; and of course the ways in which blogs can or ought to change for answers to these questions to become more satisfactory. Among the notable Canadian contributions to this literature are “Legal Academia 2.0: New and Old Models of Academic Engagement and Influence” by Paul Daly ― the co-host of the Dunsmuir Decade symposium ― and Édith Guilhermont’s “La contribution des blogues juridiques à la connaissance, à la critique et aux transformations du droit“. I too have occasionally mused on the subject of blogging, and of its relationship to writing about law more broadly.

In particular, after attending a colloquium on “The Responsibility of Doctrine” or, rather, “La responsabilité de la doctrine” hosted by McGill’s Paul-André Crépeau Centre for Private and Comparative Law, I wondered about the complicated relationship between the meanings of the word doctrine in English and in French ― “doctrine” and “la doctrine” ― and also about the contribution that blogs could make to either or both of these things. I hope the readers will forgive me for quoting myself at considerable length, because, as I will explain below, I think that what I wrote then is directly relevant to the Dunsmuir Decade symposium:

The important thing about both [doctrine and la doctrine] is that they are the products of, and indeed very nearly synonymous with, collective thinking about the law. La doctrine, as I already mentioned, is a set of writings, a discourse involving multiple authors. … And doctrine is, of necessity, derived from a multitude of judicial decisions rendered over time. A person can be un auteur de doctrine, and a judicial decision can illustrate a legal doctrine, but doctrine and doctrine are both, fundamentally, ongoing conversations.

These conversations can be noisy and perhaps chaotic, since they involve multiple speakers addressing multiple subjects ― judges, scholars, and lawyers trying to figure out not only what the law is but also, at least some of the time, what it should be. (The critical component of la doctrine is often mentioned in its definitions. But those of you who have listened to Justice Stratas’ lecture [on “The Decline of Legal Doctrine“] or read my post about it, will also recall that he said that the judges who are “doctrinal” are not only interested in what the rules are, but also, perhaps, in tweaking in modifying them.) They yield no permanent truths and no irrevocable agreements, and as new voices enter both their vocabulary and their contents shifts, usually imperceptibly, sometimes abruptly.

But meandering and sometimes cacophonous though these conversations are, they are the visible, and therefore the imperfect, manifestation of the jurists’ quest to make the law coherent and conducive to the public good through argument and shared deliberation. Common lawyers, most famously Chief Justice Coke, called this quest the “artificial reason” of the law. While I am not aware of an exact civilian equivalent, I believe that Portalis, for example, with his insistence that “[l]aws are not pure acts of power; they are acts of wisdom, justice and reason,” and that “[t]he lawmaker … must not lose sight of the fact that laws are made for men, and not men for laws” would have shared its spirit.

At least some of Friday’s presenters insisted that la doctrine is our joint responsibility as juristes … So did Justice Stratas in his lecture, as called upon judges, lawyers, and scholars alike to devote ourselves to doctrine, and on all of those who write about the law to take doctrine seriously. … The web 2.0, and especially the blogs, are already a part of the doctrinal conversations, and will be an ever more important one in the years to come. Justice Stratas not only mentioned a couple of bloggers (specifically, Paul Daly and yours truly, for which I am very grateful to him) as examples of legal writers who take doctrine seriously, but also kindly commented on my post about his lecture. This sort of exchange was simply impossible until a few years ago, and I suspect that, for many, it still seems inconceivable. But I am hopeful, and pretty confident, that in time it will no longer seem so. … [I]f doctrine and doctrine are to flourish in the 21st century, they will need to remain open to new forms, and that it will not do to ignore these new forms simply because they are unfamiliar.

One of the joys of the Dunsmuir Decade symposium for me ― and the reason I am so tediously repeating myself ― is that it was, I think, a perfect demonstration of what the synthesis of doctrine and doctrine that I had in mind looks like, and of the blogs’ contribution. It was an instance of collective thinking about the law in an attempt to figure out where the law stands, how it got there, and whither it ought to go if it is to fulfill the requirements of coherence and orientation to the public good. It was a conversation that involved a variety of voices ― not just academics but also legal practitioners and judges (the first time, I think, that Canadian judges have published blog posts!) ― and that was suitably “meandering and cacophonous”, perhaps to the bemusement of Justices LeBel and Bastarache, who kindly provided its conclusion. But while we have surely not arrived at any final truths about administrative law, I am pretty confident that we have, together, strengthened its “artificial reason”.

And of course this conversation happened on blogs ― and I doubt that it could have happened elsewhere. Blog posts, though the Dunsmuir Decade ones were admittedly long by the standards of the medium, allow one to develop an argument to a much greater extent than a 15-minute conference presentation, yet are still easier both to write and to read than full-blown journal articles or book chapters. The blogging symposium thus has advantages over both the traditional conference, in the depth of the reflection that it makes possible, and over, say, an edited collection of essays, in terms of both breadth ― and over both in terms of the cost in time and money for both organizers and participants.

All this is not to say that these more longstanding fora for doctrine and doctrine have lost their relevance. As Prof. Daly and Dr. Guilhermont also noted, the new media, including the blogs, are complementary to the old; they will not fully replace them any time soon, if ever. But as they have noted too, and as I did, new forms, including especially blogs, will be an essential support for doctrine and doctrine in the years and decades to come. I think that the Dunsmuir Decade symposium demonstrated that this was not just a futuristic vision of a few enthusiasts, but the reality here and now.

The Dunsmuir Decade

Announcing a joint Administrative Law Matters/Double Aspect blogging symposium on the 10th anniversary of Dunsmuir

(This post is co-written with Paul Daly)

It may be hard to believe that March 7, 2018 marks the 10th anniversary of the Supreme Court of Canada’s decision in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, where the Court reformulated Canadian administrative law.

Dunsmuir is — by some distance — the most cited decision of any Canadian court and, for Canadians and Canadaphiles, synonymous with Canadian administrative law.

For most listeners, “Dunsmuir” will represent something more profound. It might evoke a sense of hope, for in 2008, onlookers hoped that the Court had finally settled some great questions about deference, the administrative state and the Canadian Constitution. But it might also evoke a sense of despair, for in the years since 2008, it has become clear that many questions remained unsettled, about the scope of deference the nature of judicial review, and the role of judges in administrative law cases.

For these reasons, March 7, 2018 is a date worth observing.

Paul Daly and I propose to mark the anniversary in a novel way. In the weeks leading up to March 7, Paul and I will publish on Administrative Law Matters and Double Aspect a series of short blog posts written by leading members of the Canadian legal community. The list of confirmed contributors and indicative topics appears below (though is, of course, subject to change).

On March 7, we will publish a post by Justice David Stratas of the Federal Court of Appeal summarizing the contributions and the current state of play in relation to Dunsmuir, and, in addition, contributions by Louis LeBel and Michel Bastarache, the authors of the majority reasons in Dunsmuir, reflecting on the case and contemporary reactions to it.

These contributions will subsequently be published in the Canadian Journal of Administrative Law & Practice, the overall goal being to enrich discussion of Canadian administrative law and to blend new and old forms of legal writing. Contributors will be encouraged to edit their contributions in light of comments received from blog readers and other discussants on social media ― so don’t be shy!

The Background to Dunsmuir/Le contexte de Dunsmuir

Sheila Wildeman (Dalhousie)
Martine Valois (Montréal)
Lorne Sossin (Osgoode Hall)
Clarence Bennett (Stewart McKelvey LLP)

The Philosophy of Dunsmuir/La philosophie de Dunsmuir

Matthew Lewans (Alberta)
Mark Walters (McGill)
Mary Liston (UBC)

Correctness Review/La norme de la décision correcte

Lauren Wihak (McDougall Gauley LLP)
Suzanne Comtois (Sherbrooke)
Shaun Fluker (Calgary)
Gerald Heckman (Robson Hall)

Reasonableness Review/La norme de la decision raisonnable

David Mullan (Queen’s)
Eddie Clarke (Wellington)
Peter Gall (Gall Legge Grant Zwack LLP)
Alice Woolley (Calgary)

Dunsmuir and Fairness/Dunsmuir et l’équité procédurale

Kate Glover (Western)
Laverne Jacobs (Windsor)
Nicholas Lambert (Moncton)

Dunsmuir and the Constitution/Dunsmuir et la constitution

Audrey Macklin (Toronto)
Evan Fox-Decent & Alexander Pless (McGill & Justice Canada)

Indigenous Peoples and Dunsmuir/Les peoples autochtones et Dunsmuir

Naoimi Metallic (Dalhousie)
Janna Promislow (Thompson Rivers)

Teaching Dunsmuir/Enseigner Dunsmuir

Craig Forcese (Ottawa)

Judicial Perspectives/Regards de la magistrature

John Evans (Goldblatt Partners LLP)
Joseph Robertson (UNB) “How Would Dunsmuir be Decided Today?”

Comparative Perspectives/Regards comparatifs

Dean Knight (Wellington)
Jeff Pojanowski (Notre Dame)
Janina Boughey (UNSW)

The Effects of Dunsmuir/Les effets de Dunsmuir

Diana Ginn & Will Lahey (Dalhousie)
Paul Daly (Cambridge)
Robert Danay (Justice Canada)

Moving on from Dunsmuir/Faut-il passer à autre chose?

Leonid Sirota (AUT)
Martin Olszynski (Calgary)

Summary/Résumé

Louis LeBel (Laval)
Michel Bastarache (Caza Saikaley LLP)
David Stratas (Federal Court of Appeal

Mancini on Khadr

Announcing a guest post by Mark Mancini on the Khadr Settlement

I am delighted to announce a forthcoming guest post by Mark Mancini on the Canadian government’s settlement with Omar Khadr. There have been many hyperbolic reactions to it, so I am very much looking forward to what I expect will be nuanced and thoughtful comments on an important issue that deserves more serious treatment than it has mostly received. Mr. Mancini is a recent graduate of UNB, already a published scholar, and a friend of this blog. I am delighted to welcome him as a contributor.

The Blog of John Henry

A comment on Nick Barber’s thoughts on “The Legal Academic in the Internet Age”

How is the internet going to change the ways in which legal academics teach, publish, and engage with the outside world in the medium term? Nick Barber addresses this question in a provocative post over at the UK Constitutional Law Blog. Blogs, he argues are the way of the future, while both social media should be resisted, and traditional lectures are destined for the dustbin of history. You might think that as a blogging enthusiast I would agree, or at least find the idea exciting. But prof. Barber doesn’t think that the future belongs to any old blogs; he has a specific type of blog in mind ― professional, edited outfits (like the UK Constitutional Law Blog itself), which will fuse with more traditional journals. A future in which such outlets are the dominant medium does not strike me as blogging utopia at all.

I will not say too much about prof. Barber’s views on the future of teaching. He thinks

that lectures will increasingly be replaced by shorter, fifteen or twenty minute, vlogs that will be designed for the medium; that is, they will consist of lecturers talking to camera, perhaps with slides incorporated into the broadcast. A series of these vlogs will then combine to cover the material that used to be covered in the lecture.

This will be both less demanding for the lecturers, who will be able to re-use recordings, and less boring for the students, who will be able to consume them in more digestible chunks and at their own pace. Prof. Barber thinks that by replacing lectures, “the rise of vlogs will free up time for more interactive teaching” to small groups of students. It’s a tempting vision, as I’m planning my lectures next term to classes of, potentially, 270 and 60. But whatever the chances that it will be realized at Oxford, where prof. Barber teaches, or at similarly well-heeled institutions, I don’t see how law schools like the one at which I am will have the resources to replace my four hours of pontificating to 330 students by the appropriately astronomical number of hours needed to afford them all small group teaching.

Similarly, I will not say too much about prof. Barber’s dismissive attitude to social media (i.e. Facebook and Twitter), which he says “encourage folly and, worse, they then go on to preserve this folly for posterity”. Steve Peers has responded with a Twitter thread that points out that Twitter, in particular, enables people to interact over the barriers that separate different professions (or branches of the legal professions) and academic disciplines, which (at least sometimes) makes it possible for conversations that would otherwise happen within these different groups to be enriched, for the benefit of all involved. I would only add that social media also help break down geographical barriers in a way that not only traditional publications, or even good old email, do not, and also the barriers of rank or standing within each profession or discipline. I understand why some people will prefer to heed prof. Barber’s call for caution, and do not agree with people who occasionally come close to saying that every academic ought to be on Twitter, but I am pretty sure that many will find it useful. I know I do; indeed I think that I have benefited a great deal from my (initially very reluctant) embrace of that medium. (To give just one example, I’m not sure if my collaboration with Benjamin Oliphant would have come about if we hadn’t been interacting on Twitter, as well as reading each other’s blog posts.)

I want to comment in some more detail on prof. Barber’s views on the present and future of blogs. Prof. Barber is enthusiastic about “the emerging capacity of blogs to permit academics to engage with important constitutional issues as they unfold”, without being constrained by the “glacial” pace at which articles, even short and topical ones, in traditional publications come out. Moreover, ” the rise of the blogs has also brought with it a welcome relaxation of style”, allowing scholars to engage with lay audiences. At the same time, as with social media, prof. Barber worries that

[t]he ease and speed with which material can be published increases the risk of error and of ill-considered scholarship. This may be partly due to the laziness of scholars but it is, also, the product of a collective pressure to publish quickly.

Half-baked or outright mistaken arguments that would never have made their way onto the printed page can appear in blog posts, and live on forever in cyberspace.

Prof. Barber sees the solution to this problem in the professionalization of blogs. “We need”, he argues, “to create structures that will make use of the speed and accessibility of the Internet whilst avoiding the risks of sloppy scholarship and blow-hard opinionizing.” Already, prof. Barber says, “[t]he best law blogs, like journals, now play an editorial role, reviewing and critiquing submissions before they are posted.” Whether these structures develop as part of what are now blogs or what are now journals, they will cause the quality of blog output to improve. This, in turn, will lead to academia finally crediting blog posts similarly to more traditional publications for the purposes of promotion, and also cause “the era of the personal blog as a serious academic enterprise [to] come to an end”, as independents are out-competed on quality by “edited blog[s]”.

Unlike prof. Barber, I do not see these developments as something to be wished for. It’s not that I’m against quality, of course ― I try to achieve it with my own posts here. But I know that I occasionally produce bloopers, and suspect that I am not quite alone in this. So I can see the attraction of prof. Barber’s position ― if we think that the most important thing for us (as scholars or as lawyers) is that everything written on law be of high quality. But I don’t think that this is the only thing that matters, and I’m afraid that rather more will be lost ― and perhaps less gained ― in the quest for quality than prof. Barber cares to admit.

For one thing, I’m skeptical about the ability of blogs to “play an editorial role”, at least a meaningful one, in a timely fashion. As they become more institutionalized, less the preserve of enthusiasts who pour the hearts into blogging without counting the hours, and especially if the volume of contributions (and perhaps the competition to get published) increases, as prof. Barber expects that it will, edited blogs will be likely to acquire some of the less pleasant characteristics of the journals, the “glacial” pace among them. The more quality assurance one wants to have ― the more editing and stages of peer review ― the slower the process becomes, until the only time savings over the traditional journals are those made by eliminating printing.

More importantly, the institutionalization of blogs and the disappearance of independent blogging would likely close down an important avenue that is now available to people who lack the exalted status and distinguished credentials of prof. Barber and his fellow contributors to the UK Constitutional Law Blog for communicating their ideas about the law. When I started this blog, I was a graduate student with exactly one academic publication to my name. Nobody would have given me a platform in a serious edited blog. But less than three years later, Double Aspect was named the best law blog in Canada. Paul Daly had a much fuller CV and a higher perch when he started Administrative Law Matters, but he too was “only” a junior academic at that point. Yet within a couple of years his blog was an indispensable resource on public law, and he also won (well deserved, in his case!) recognition as the best in Canada. Independent blogging democratizes academic and professional conversations about law by allowing upstart voices to join in and, just possibly, be heard if they have something interesting to say.

Independent blogging can also be an avenue by which unorthodox ideas that might not pass the test of editorial quality control can be developed. I doubt that any blog editor would have cared much for my early musings about originalism. Two peer-reviewed articles later, I can say that they were not as silly as they might have seemed at the time, though of course the process of working on those articles with Mr. Oliphant involved developing and clarifying my (and his) initial ideas a great deal. But without those early unedited musings, the articles would not have happened. And, to repeat, if I didn’t have my own blog, and had to count on the good will or open mind of an editor ― who would, in the nature of things, be an established, and more or less orthodox, academic ― to get them published, I doubt that they would ever have seen the light of day.

I also think that personal or (relatively) small-group blogs (such as the Volokh Conspiracy or Balkinization) have another advantage over institutional ones: they require, and thus select for, commitment. Institutional blogs make it possible for any given person to contribute at large intervals, perhaps only sporadically. That can of course be a good thing ― people who only sometimes think they have something to say in blog post form have an outlet for those occasions. (For this same reason, I think guest-posts are generally great, and am delighted to have hosted a number of them of the years.) But I do think that there is something to be said for committing to a platform that leaves you no cover and forces you to blog not just now and then, but week in and week out. It’s bloody hard ― as my occasional bouts of silence show, even maniacs like me sometimes find it impossible ― but as with so much else, there are benefits to regular practice. It makes one develop one’s voice and style; it allows one to cover a variety of subjects in some depth; it provides one with a well-developed record of one’s observations and opinions that can be useful for other purposes (like teaching, or simply keeping track of legal developments) in the future.

Even if the personal blog cannot compete with a professionally edited platform for high-level scholarship on pure quality, it has its own, different value. It can be a way for new and rebellious voices to enter into and enliven the conversation. It can be a proving ground for people and ideas. It can be the record of a coherent or developing thought process. In can, in short, be many things that a edited blog cannot. Call me a blogging romantic if you will,

But before I let your steam drill beat me down,
I’d die with a hammer in my hand, Lord, Lord,
I’d die with a hammer in my hand.

 

New Year, New Look

For 2017, Double Aspect has a new look and a new address

This is just a quick note to let my readers know that I’ve given the blog’s look an update. Nothing crazy, but I hope that it looks better than it did before ― or at any rate that it looks reasonably well. If you have any concerns please let me know.

In addition, the blog now has a new URL ― doubleaspect.blog. You don’t actually need to update your bookmarks, as you’ll be automatically redirected to the new address even if you go to the old one, but if you want to save yourself that fraction of a second, then go ahead.

I don’t suppose my posts were much missed during the holidays, which I hope were happy for all. But now that that’s over, I will resume normal blogging in short order. Happy 2017, everyone!