GS/Law 6761.03, Fall 2004, Outline

GS/Law 6761.03, Fall 2004
Some Theoretical Perspectives on Public Law and Administration

October 14, 15 and 16, 2004
Location: Osgoode Hall Law School Professional Development Program, 1 Dundas Street East, Toronto, Ontario.

Course Outline

Course Director: Ian Greene. Office: 224 McLaughlin College, York University
tel. of. 416-736-5128, fax 416-736-5436, home 416-763-0766. email: igreene@yorku.ca.
Web page: www.yorku.ca/igreene

The purpose of this course is to provide a theoretical framework for the programme by considering the application of some contemporary theories of, and perspectives on, public administration and administrative law. Theoretical perspectives considered will include liberalism, the rule of law, the functionalist critique, legal pluralism, critical theory, feminist legal theory, public choice theory, organizational theory, and democratic accountability. A focus of the course is the need to articulate theoretical bases for identifying appropriate roles for legislatures, agencies and courts in promoting through law democratic values and the protection of human rights in the administrative state.

Assignments and evaluation

Students have a choice of being graded in one of the following three ways:

1. Students may opt to write a take-home exam worth 100% of the course grade. The take-home exam will consist of two parts: a) a theoretical essay of about 10 pages double-spaced (1500 words) analyzing some aspect of administrative law theory, and b) a question dealing with the application of theory to practice, such as a case commentary. The take-home exam is due on Friday, November 26, and may be filed by email.

2. Students may write a research paper worth 100% of the course grade. The research paper should be about 20 pages double-spaced (3000 words). It should apply some aspect of administrative law theory to a specific legal problem. Students are welcome to prepare an outline for the paper and to discuss the outline with the course director prior to completing the final draft of the paper. The research paper is due on Friday, November 26, and may be filed by email.

3. Students may write a short research paper worth 50% of the course grade (10 pages double-spaced) PLUS they may complete one of the two questions on the take-home exam (student's choice) for the other 50% of the course grade. The short research paper is due on Monday, October 25 (may be filed by email, and will be graded within 10 days), and the take-home exam question is due on Friday, November 26, and may be filed by email.

Class presentations:

Each student is expected to give one class presentation of no more than 5 minutes summarizing and commenting on one of the readings. (If the presentation grade, when calculated as 10% of the final grade, results in the final grade being raised, then the presentation grade will be used to raise the final grade.) NOTE: Experience has shown that it is exceedingly difficult to keep a presentation to five minutes. Please time your presentation and try not to go overtime!

Readings and lecture topics:

All readings are contained in the course kit.

Thurs Oct 14:   Expectations for the course, and introduction of main topics;
9 - 12:15   liberalism and the rule of law.

   Readings:
       A.V. Dicey, An Introduction to the Study of the Law of the Constitution, 6th ed. (1902), 37-38, 183-85, 189-92, 412-416.

       Sir Ivor Jennings, The Law and the Constitution, Appendix II.

       Alan C. Cairns, "The Past and Future of the Canadian Administrative State," (1990) U. of Toronto Law Journal, 319 (excerpts).

       J.M. Evans, H.N. Janisch, David J. Mullan, and R.C.B. Risk, Administrative Law: Cases, Text, and Materials (Toronto: Emond Montgomery, 4th ed., 1995), 3-34.

       Martin Loughlin, Public Law and Political Theory (Oxford, Clarendon, 1992), 29-36.

Thurs Oct 14:   Liberalism and the rule of law (continued); evolution of democracy;
1 - 3:15   alternative perspectives

Readings:
       John Locke, The Second Treatise on Civil Government [1690], Chapters IX-XII (excerpts), and paragraphs 95 and 222.

       J.S. Mill, On Liberty [1859], (London, Oxford U. Press, 1966), 7-9.

       Peter Hogg, Constitutional Law of Canada, (2004), excerpts from Ch. 9, "Responsible Government," and Ch. 12, "Parliamentary Sovereignty."

       Allan C. Hutchinson and Patrick Monahan, "Democracy and the Rule of Law," in A.C. Hutchinson and P. Monahan, Eds., The Rule of Law: Ideal or Ideology (Toronto: Carswell, 1987), 119 - 127.

       Ian Greene, Carl Baar, Peter McCormick, George Szablowski and Martin Thomas, Final Appeal: Decision-making in Canadian Courts of Appeal. (Toronto: Lorimer, 1998), 1-22.

Thurs Oct 14:   Theoretical approaches to policy-making; legal pluralism
3:30 - 5:00

   Readings:
       Stephen Brooks, "Public Policy and Policy Making in Canada," in R. Krause and R. Wagenberg, Canadian Government and Politics, Ch. 12 (237-260).

       H.W. Arthurs, Without the Law: Administrative Justice and Legal Pluralism in Nineteenth Century England (Toronto: U of T Press, 1985), 188-214.

Fri Oct. 15:   Functionalism, critical legal theory; feminist legal theory;
9 - 12:15   Public Choice theory

   Readings:
       Martin Loughlin, Public Law and Political Theory (Oxford, Clarendon, 1992), 105-137.

       Allan C. Hutchinson, "Crits and Cricket: A Deconstructive Spin," in R.F. Devlin, Ed., Canadian Perspectives on Legal Theory (Toronto: Emond Montgomery, 1991), 181-205.

       Kathleen A. Lahey, "On Silences, Screams and Scholarship: An Introduction to Feminist Legal Theory," in R.F. Devlin, Ed., Canadian Perspectives on Legal Theory (Toronto: Emond Montgomery, 1991), 319-338.

       Jerry L. Mashaw, Greed, Chaos, and Governance: Using Public Choice to Improve Public Law (New Haven: Yale University Press, 1997), excerpts.

Friday afternoon: free time (or time to write short paper, or read)

Sat Oct 16:   Organizational Theory; Judicial deference; performance evaluation;
9:00 - 12:15   accountability

   Readings:

       Robert Adie and Paul G. Thomas, "The Social Meaning of Organizational Life," in Canadian Public Administration: Problematical Perspectives, 96 - 141.

       David Dyzenhaus, "The Politics of Deference: Judicial Review and Democracy," in M. Taggart, ed., The Province of Administrative Law, 279-307.

       David Beatty, Constitutional Law in Theory and Practice (Toronto: University of Toronto Press, 1995), 13-19, 155-161.

       Martin L. Friedland, A Place Apart (Ottawa: Canadian Judicial Council, 1995), "Performance Evaluation," 157 - 166.

       Janice Gross Stein, The Cult of Efficiency (Toronto: Anansi, 2002), Ch. IV, "Measuring up: constructing accountability," 137-154.

Sat Oct 16:   Judicial discretion and the administrative state.
1 - 3:15

   Readings:
       Margaret Allars, Australian Administrative Law: Cases and Materials (Sydney: Butterworths, 1997), "Discretion," 16-25.

       Peter McCormick and Ian Greene, "Judicial Decision-Making: Trial Courts," in McCormick & Greene, Judges and Judging (Toronto: Lorimer, 1990), 118-137.

       Peter McCormick, Canada's Courts (Toronto: Lorimer, 1994), "Winning and Losing in Canada's Courts," 152-167.

       Ian Greene, Carl Baar, Peter McCormick, George Szablowski and Martin Thomas, Final Appeal: Decision-making in Canadian Courts of Appeal. (Toronto: Lorimer, 1998), "The Human Elements of Judicial Decision-making" (199-211).

Sat Oct 16:   Judicial activism; the courts and democracy
3:30 - 5

   Readings:
       Rainer Knopff and F.L. Morton, Charter Politics (Toronto: Nelson, 1992), 169-179.

       Michael Mandel, The Charter of Rights and the Legalization of Politics in Canada (Toronto: Thompson, 1994), 39-55.

Following this final class, there will be a reception for students from 5 to 6 or 6:30, location TBA.