Last year a student in Assistant Professor Mary Liston’s administrative law class asked why administrative law contains so many frameworks. Her response was, “I honestly don’t know!” At that time she had a strong sense of when these frameworks emerged and how foundational cases contributed to their development, but a cogent explanation of why eluded her – until now.
The student’s question subsequently formed the basis of her research paper that she presented at the Cambridge University Law Faculty in September 2014. The conference, Process and Substance in Public Law, brought together public law scholars from across the common law world and other jurisdictions, giving them an opportunity to explore how common law systems are similar to and different from one another in the area of public law.
Professor Liston points out that judicial review in common law systems inevitably involves legal complexity. In administrative law, judges incorporate multiple factors into their decision-making to determine if a public official has acted fairly, reasonably, correctly, or proportionately. “Over time, over-arching analytic frameworks were created in the common law to aid counsel and judges in making legal arguments and shaping judicial review,” Professor Liston explains.
Students are introduced to one of these frameworks, the Oakes test, in first-year constitutional law. In upper-year administrative law, they then learn the Baker framework for procedural fairness, the Standard of Review framework for reviewing the substance of decisions, the Doré framework for reviewing discretionary decisions affecting Charter values, and in some classes the framework for the duty to consult and accommodate in Aboriginal administrative law. All are important in sorting and organizing the relevant information.
In exploring the question of what the function of frameworks in administrative law is, Professor Liston has turned to recent literature from cognitive science for insights about how we can become aware of the inescapable effects that experience, assumptions, values, emotions and unconscious biases have on our ability to reason and think clearly.
“The literature argues that we need to develop better cognitive procedures in order to render our judgments more ‘mindful,’ contextual, objective, and less prone to defects like tunnel vision or implicit stereotyping. The importance of these insights for law cannot be understated as they can potentially improve jury deliberations, police procedures, framing legal arguments and, of course, judicial or tribunal decision-making. Interestingly, a strong convergence exists between cognitive science and recent feminist thought on better, contextualized judging,” Professor Liston explains.
Professor Liston suggests that legal analytic frameworks are exactly the kind of cognitive procedural solutions for the problems associated with everyday human reasoning. According to her, each framework requires judges to engage in ‘mini’ proportionality tests. Cases contain numerous factors that justifiably ‘pull’ judges in different directions – factors such as the public interest, the importance of the rights involved, costs, or efficiency concerns – and which are necessarily brought into play by the parties themselves, the norms that the legislature has laid down in statutes, the interaction of common law principles, and Canadian values. The weight that judges give to these factors may be the same as the original decision-maker.
“However, judges may also disagree and the original decision will likely be invalidated. When this happens, the resulting judgment potentially implicates controversial concerns about the separation of powers, the rule of law, democracy, or competing conceptions of justice,” Professor Liston argues.
Yet while frameworks are an important analytic tool in judicial reasoning, Professor Liston is also critical of the current deficiencies of frameworks in administrative law. One key criticism is that Canadian public law completely disavows the reality that judges re-weigh factors. According to Professor Liston, because of this disavowal frameworks are often used to conceal anxieties, rather than acknowledge their influence.
“Judges must make value choices that have important implications for the legitimacy of the courts, democratic accountability, and the larger constitutional order,” she notes. “Both judges and statutory delegates must justify these value choices through the provision of quality reasons. In administrative law, we’d begin by rejecting the current prohibition against re-weighing.”
If working optimally, analytic frameworks can guide legal thinking so that interpretive and value choices can be more consciously made, more transparent and better reasoned. “These frameworks need to be applied more transparently so that the kind of balancing that judges engage in is made openly and honestly,” Professor Liston explains. Judges could then become more accountable to other branches of government with the result that if those other branches disagreed with a legal decision, they would know better how to respond. “Ultimately, this is what we call ‘institutional dialogue’ in Canada,” Professor Liston states, “but it is also a concept that is increasingly found in many other jurisdictions.”
Professor Liston’s paper Transubstantiation in Canadian Public Law: Processing Substance and Instantiating Process was selected for inclusion in a forthcoming book entitled Public Law Adjudication in Common Law Systems: Process and Substance, which will be published later this year by Hart Publishing. A full list of Professor Liston’s publications is available here.
PROFESSOR MARY LISTON
Professor Mary Liston is an Assistant Professor at the Allard School of Law. She teaches administrative law, public law, legal theory, and law and literature. Her research focuses on advanced and comparative public law, Canadian administrative law, Aboriginal administrative law, and theories of the rule of law. Her work has been cited by the Supreme Court of Canada. She is a co-author along with Craig S. Forcese, Adam Dodek, Philip Bryden, Peter Carver, Richard Haigh, and Constance MacIntosh of Public Law: Cases, Commentary and Analysis, 3rd ed. (Emond-Montgomery, 2015). She is also a contributor to the casebook Administrative Law in Context, 2nd ed. (Emond-Montgomery, 2013).