4 ms·

We don't see eye to eye on what the term 'administrative law' refers to in this case. I've tried to be as clear as possible about the difference between "Admin

by ABCLAW 8y ago

We don't see eye to eye on what the term 'administrative law' refers to in this case. I've tried to be as clear as possible about the difference between "Admin law - the field of law" and "Admin law - the set of principles", but perhaps I've failed. The esteemed RA Macdonald wrote a fantastic article on the precise difference you and I have in our approaches to understanding the law. Here's the paywalled version, but the preview should provide a nice snippet: https://www.jstor.org/stable/42897805?seq=1#page_scan_tab_contents https://www.jstor.org/stable/42897805?seq=1#page_scan_tab_co... In short, you have a narrow view of admin law. I have an expansive view. Both have their advantages, but the confusion between the two, given that they share a title, is unfortunate. To be clear, I explicitly stated the Arbitrary and Capricious standard does NOT apply as a test here, but rather the animating concept behind the standard DOES. I've stated as much no less than three times. To ignore that distinguishing remark to indicate that I'm misusing a test in another field of law when I'm explicitly indicating that there's an analogy between two different fields of law is an unfortunate indicator that my between-meeting scrawl was not well authored. Edit: upon re-reading your post, you seem to believe that Arbitary and Capricious is a term of art that only exists in US administrative law. That's reading the history of that area of law very narrowly (Especially given that the US judiciary agrees see: State Farm and following cases). The APA language literally includes by name the entire french tradition of analysing abus de droit. I won't get into that segment, because I can nerd out for days on that point :).

torstenvl 8y ago
The case under discussion is a U.S. case. In that context, "administrative law" has one specific meaning. When discussing administrative law, "arbitrary and capricious" has one specific meaning. Your use of these terms is not correct. This is not an administrative law case, and you were wrong to mislead tptacek.
- ABCLAW 8y ago
  I'd be glad if you'd be a bit more charitable in your reading of my points. You are speaking with someone who has litigated and published substantial material in the specific area you're attempting to lecture me in. My point isn't very complicated, but it doesn't seem like you're trying to understand it. You're trying to define it away, and it doesn't make sense to do so if you actually know the fields of law intimately. The terms you're discussing do not originate in the US and the principles which have been (repeatedly) pointed at as the core subject of discussion do not first arise there either. Nor are they exclusive used there, nor are the problems they remedy exclusively addressed or present there. This is comparative law as applied between fields of similar construction. I'm shocked that the point is so difficult to digest; this is one of the key techniques used in the analysis of legal systems. Unfortunately, this was not supposed to be a massive string of posts about the portability of principle. If it was, I'd have started with the actual roots of the principles we're discussing, which (and this is a very simplistic summary) attained quasi-modern forms in the 1600s, in the context of war over rulemaking authority in England, and was developed further into the fully modern form in civilian systems. So no, there's nothing misleading - this is actually the more fulsome understanding. This is a common issue with barristers - the law, to them, only seems to extend to what they believe they can use in a factum. I just think the full story is key in sorting through the jargon to show what 1A is actually trying to do, but it seems we've spent all our time nitpicking jargon instead of examining the intent and purpose of the rules. So clearly I wasn't too effective! Unfortunately, this is my last post on the subject, since we're well off productive ground, but if we cross paths again, I hope we can have a more productive discussion. I love speaking with colleagues here. I'll end with a nice little note by former CJC Beverley McLachlin on the aims of admin law as it developed in Canada - maybe the parallels will be illustrative: "The goal was to ensure that administrative tribunals operated within the principles that define the rule of law. Not arbitrarily. Not capriciously. Not unreasonably. Fairly and in accordance with the law."

by ABCLAW 8y ago

torstenvl 8y ago

The case under discussion is a U.S. case. In that context, "administrative law" has one specific meaning. When discussing administrative law, "arbitrary and capricious" has one specific meaning. Your use of these terms is not correct. This is not an administrative law case, and you were wrong to mislead tptacek.

ABCLAW 8y ago
I'd be glad if you'd be a bit more charitable in your reading of my points. You are speaking with someone who has litigated and published substantial material in the specific area you're attempting to lecture me in. My point isn't very complicated, but it doesn't seem like you're trying to understand it. You're trying to define it away, and it doesn't make sense to do so if you actually know the fields of law intimately. The terms you're discussing do not originate in the US and the principles which have been (repeatedly) pointed at as the core subject of discussion do not first arise there either. Nor are they exclusive used there, nor are the problems they remedy exclusively addressed or present there. This is comparative law as applied between fields of similar construction. I'm shocked that the point is so difficult to digest; this is one of the key techniques used in the analysis of legal systems. Unfortunately, this was not supposed to be a massive string of posts about the portability of principle. If it was, I'd have started with the actual roots of the principles we're discussing, which (and this is a very simplistic summary) attained quasi-modern forms in the 1600s, in the context of war over rulemaking authority in England, and was developed further into the fully modern form in civilian systems. So no, there's nothing misleading - this is actually the more fulsome understanding. This is a common issue with barristers - the law, to them, only seems to extend to what they believe they can use in a factum. I just think the full story is key in sorting through the jargon to show what 1A is actually trying to do, but it seems we've spent all our time nitpicking jargon instead of examining the intent and purpose of the rules. So clearly I wasn't too effective! Unfortunately, this is my last post on the subject, since we're well off productive ground, but if we cross paths again, I hope we can have a more productive discussion. I love speaking with colleagues here. I'll end with a nice little note by former CJC Beverley McLachlin on the aims of admin law as it developed in Canada - maybe the parallels will be illustrative: "The goal was to ensure that administrative tribunals operated within the principles that define the rule of law. Not arbitrarily. Not capriciously. Not unreasonably. Fairly and in accordance with the law."