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Administrative Discretion (administrative + discretion)
Selected AbstractsContractual Discretion and Administrative Discretion: A Unified AnalysisTHE MODERN LAW REVIEW, Issue 4 2005Article first published online: 1 JUL 200, Terence Daintith While judicial control of discretionary power is at the centre of administrative law, it is a topic which has received little attention in contract. By tracing the development of the relevant case law in administrative law judicial review and in contract, the paper seeks to show how review in both contexts has converged upon a single core technique of control through decisional standards. The paper further argues that the consequent identity of method in public and private law review of discretion does not in itself weaken basic public/private law distinctions. While the territories of legislation and contract may overlap, they present basic differences as contexts for the exercise of judicial control of discretion, and these differences of context may weigh more heavily than identity of approach in determining the outcomes of litigation.1 [source] Discretion unbound: Reconciling the Charter and soft lawCANADIAN PUBLIC ADMINISTRATION/ADMINISTRATION PUBLIQUE DU CANADA, Issue 4 2002Lorne Sossin This study explores the relationship between discretion and the Charter and argues for a broader, more contextual approach to remedying the source of unconstitutional discretion. Guidance as to how to exercise broad discretionary authority comes in the form of "soft law," which encompasses a variety of non-legislative instruments such as policy guidelines and training materials, and which, more informally, extends to administrative culture. Administrative discretion involves choices and judgements usually shaped by a range of legal, bureaucratic, social and personal factors. Under present jurisprudence, the less precise a statutory discretion and the greater the reliance on non-legislative guidelines, the more difficult that discretion will be to subject to constitutional scrutiny. This article challenges this logic and concludes that respect for governmental accountability and the rule of law require bringing soft law out of the constitutional shadows. The first part of the analysis examines the regulation of discretion generally and soft law specifically outside the Charter. The second part analyses the leading case law on the regulation of discretion under the Charter. The third section explores the intersection of discretion, soft law and the Charter. Finally, the fourth section considers the problem of remedying unconstitutional exercises of discretionary authority. Alternative principles are suggested for the development and application of soft law, which envisions a central role for the Charter in rendering the discretionary decision-making process more accountable and just. A version of this paper was first presented at a workshop for the Twenty Years Under the Charter Conference, Association of Canadian Studies, Ottawa, 19 April 2002. The author is associate professor, Faculty of Law, University of Toronto. He is grateful to those who participated in that workshop for their suggestions and comments, as well as to Robert Chamey, David Dyzenhaus, Ian Greene, Nicholas Lambert, Ian Morrison and David Mullan, who commented on an earlier version of this paper. He is also indebted to his colleagues Sujit Choudhry and Kent Roach, who have shared their work on related themes. He would like to thank Laura Pottie and Aaron Delaney for their superb research assistance. He wishes to acknowledge the Social Sciences and Humanities Research Council, the Faculty of Law, University of Toronto, and the Connaught Foundation for their generous financial support of this research. Finally, he acknowledges the Journal's anonymous reviewers for their comments. [source] Administrative discretion and the Access to Information Act: An "internal law" on open government?CANADIAN PUBLIC ADMINISTRATION/ADMINISTRATION PUBLIQUE DU CANADA, Issue 2 2002Alasdair Roberts However, critics complain that some politically sensitive requests - often filed by journalists or political parties - are given differential treatment, with longer delays and tougher decisions on disclosure. An econometric analysis of 2,120 requests handled by Human Resources Development Canada in 1999,2001 suggests that the complaints have some merit. Requests that were identified as sensitive, or that came from the media or political parties, were found to have longer processing time, even after other considerations were accounted for. The probability that such requests would exceed statutory response times was also significantly higher. The analysis illustrates a broader point: that internal bureaucratic procedures play an important role in defining what the right to information means in practice. The analysis also highlights the need to give the federal information commissioner better tools to deal with problems of delay. Sommaire: La Loi sur l'accès à l'information du Canada assure le droit à l'information gouvernementale pour tous les Canadiens. Cependant, les critiques se plaignent du fait que certaines demandes épineuses sur le plan politique - requêtes souvent déposées par des journalistes ou des partis politiques - font l'objet d'un traitement différentiel, avec des délais plus longs et des décisions plus strictes au moment de la divulgation. Une analyse économétrique de 2 120 requêtes traitées par Développement des Ressources humaines Canada de 1999 à 2001 laisse entendre que les plaintes sont en partie justifiées. On a constaté que les requêtes dites «sensibles», ou qui viennent des média ou des partis politiques, prenaient plus de temps à traiter, même compte tenu d'autres considérations. En outre, ces requêtes risquaient souvent de dé passer le temps de réponse légal. L'analyse illustre un point plus général, à savoir que les procédures bureaucratiques internes jouent un rôle important en définissant ce que le droit à l'information signifie dam la pratique. L'analyse souligne également qu'il est néessaire de dormer au Commissaire fédéral à l'information de meilleurs outils pour faire face aux problèmes de délai. [source] The Origins of the ,Nonmarket Economy': Ideas, Pluralism & Power in EC Anti-dumping Law about ChinaEUROPEAN LAW JOURNAL, Issue 4 2001Francis Snyder ,Market' and ,market economy' exercise a powerful, even magnetic grip on our collective imagination. But what do we mean by ,market economy'? Does it make sense to speak of a ,nonmarket economy', and if so, what does it mean? How are the ideas of ,market economy' and ,nonmarket economy' related? Focusing on EC anti-dumping law, this article seeks to answer these questions. It argues that the legal concept of ,nonmarket economy' in EC anti-dumping law has been socially constructed, by means of relations among a plurality of institutional and normative sites, as part of a changing configuration of legal ideas in specific historical circumstances, and in contexts of political, economic, social, and symbolic power. This argument is articulated in three parts. First, the concept of ,nonmarket economy' in EC anti-dumping law, though drawing on earlier elements, had its main roots in the early Cold War. Second, starting in the 1960s, the GATT multilateral negotiating rounds began to define more specific international rules of the game, but a variety of more localised processes played essential roles as forces of change. Of special importance were, first, the tension between legislative rules and administrative discretion in the United States, and, second, the Europeanisation of foreign trade law in the course of European integration. Third, the EC law concept of ,nonmarket economy' was born in the late 1970s. The main reasons were changes in the international anti-dumping law repertoire, specific ideas in Europe about comparative economic systems, and the perceived emergence of new economic threats, including exports from China. [source] Legal issues in maximum security institutions for people with mental illness: liberty, security, and administrative discretionBEHAVIORAL SCIENCES & THE LAW, Issue 5 2002John Petrila J.D., LL.M. This article explores four legal issues relevant to the provision of care in secure hospitals. These include the current status of right to treatment litigation; the potential impact of the Americans with Disabilities Act; new developments in laws governing restraint and seclusion; and the need for uniform institutional policies on risk assessment. These issues illustrate the potential conflicts between individual autonomy and institutional control that have been at the heart of mental health law for three decades. The article suggests that because of the diminishing oversight provided by the federal judiciary, institutional custodians have a particular obligation to ensure that individual rights are not overwhelmed by concerns with security. Copyright © 2002 John Wiley & Sons, Ltd. [source] | ||||||||||