For today’s entry in the Vavilov at 5 Symposium, I am happy to feature Professor Gerard Kennedy from the University of Alberta, Faculty of Law. A leading scholar of civil procedure and administrative law, Professor Kennedy’s entry is a punchy reflection on how Vavilov has made administrative law easier to teach. Enjoy!
Professor Gerard Kennedy (Alberta)
I went to law school during the dying days of the “pragmatic and functional” approach to determining the standard of review, with Dunsmuir coming hot off the presses while I was still a JD student. I found it easier to learn than its progeny. But a decade later, I found myself teaching Dunsmuir for the first time and, while moderately grateful for some of its presumptions that permitted us to spend less time determining the standard of review, I continued to find the subject unwieldly. I was sometimes driven to despair by students’ questions as to how to even determine the standard of review.
Five years ago, things improved immeasurably when Vavilov came out. The topic of standard of review has moved from being complicated and unwieldly to teach, to having just enough ambiguity and uncertainty to make my job fun. A presumption of reasonableness, with five (now six) exceptions, channelled through two overarching rationales, essentially enables teaching the framework in a single class, with additional classes providing the gloss and the illustrations.
Of course, a law professor knows how to ask questions about marginal cases on exams. But it is also easy to ask pointed questions with obviously right answers. And obviously wrong answers, even in cases with ambiguity as to the right answer, are easier to identify.
My experience is, of course, anecdotal, but this fundamentally boils down the fact that a simple framework is a good framework—unless it is too simple, at which point it becomes unfair and/or theoretically indefensible. Vavilov struck a balance here.
Vavilov is not perfect. As Paul Daly has noted, it was an obvious compromise between jurists hawkish and dovish on judicial review. It has theoretical shortcomings. To me, the most obvious is rightly centering legislative intent in the standard of review analysis but then treating privative clauses—a quintessential marker of legislative intent—as essentially dead letter. (Personally, that’s why I would have started with a presumption of correctness review on questions of law. That could then be rebutted by a privative clause or another explicit standard of review, unless the constitution was at issue. But I digress…) It also has practical shortcomings, seen in ESA and Mason coming out with different standards of review. This is likely because the rationale of ESA is sound, but in Mason, it was realized that creating too many additional exceptions to the reasonableness presumption would become unwieldly.
But as Léonid Sirota has noted, Vavilov may be “Nonsense But It Works”. I’ll take it over what came before any day of the week. Not necessarily as a scholar (though, coming to think of it, it is an improvement over what came before), but certainly as a teacher and practitioner. Attempts to make the framework work, such as Mason, are laudable. Here’s hoping we see it at ten.