FOR EDUCATIONAL USE ONLY

55 U. Toronto L.J. 797

University of Toronto Law Journal
Summer, 2005

Special Issue
Administrative Law Today: Culture, Ideas, Institutions, Processes, Values
Essays in Honour of John Willis
V. Public Law in a Neoliberal Globalized World

*797 The Administrative State Goes to Market (and Cries 'Wee, Wee, Wee' All
the Way Home) [FNd1]

H.W. Arthurs [FNa1]

Copyright © 2005 by University of Toronto Press Incorporated; H.W. Arthurs

I Introduction
What is administrative law? What shapes it? What is transforming it?
For almost as long as administrative law has existed as a socio-political reality, a legal-
conceptual category, an academic field of study, or a specialism for practising
professionals, debate has raged over how to define it. Is administrative law 'ordinary law'
writ small, as A.V. Dicey insisted, or should administrative law be conceived as one
amongst the diverse array of interacting, semi-autonomous regimes that make up our
legal system? [FN1] This disagreement has fuelled many of the most interesting
theoretical debates in administrative law -- between normativists and functionalists,
[FN2] between red-light and green-light theories of administrative law, [FN3] and
between lawyers' values and civil servants' values. [FN4]
The first view, which insists on the primacy of 'ordinary' law, informs much of the
traditional discourse of administrative lawyers. It rests on the assumption that normative
coherence is possible, desirable, and essential within any national legal system.
Coherence is to be achieved by ensuring compliance by all institutions and agents of the
state with its fundamental juridical assumptions (the 'rule of law') through the application
of conclusive presumptions derived from the imperatives of the rule of law *798 itself
('legality,' 'rationality'), of explicit constitutional guarantees ('access to the courts,' 'the
Charter') and their analogues ('universal human rights'), or of default rules of statutory
interpretation ('procedural fairness,' 'no retroactivity'). Legally orthodox versions of the
rule of law require that this coherence be enforced by a hierarchy of 'superior' courts
mandated to review the exercise of 'delegated' powers, the content of 'subordinate'
legislation, and the proceedings of 'inferior' tribunals unless (and, seemingly, even if)
[FN5] the legislature indicates otherwise.
The second view -- shared by legal realists, pluralists, functionalists, and other rule of law
sceptics -- insists on the uniqueness and at least partial autonomy of administrative law. It
disputes the traditional view on empirical grounds (there is no such thing as 'ordinary
law,' no normative coherence within or between judge-made and statute law, no adjectival
or institutional form that is not historically contingent). It challenges the traditional view
on functional grounds (institutional differentiation is necessary for operational reasons if
the administration is to achieve its mandated goals; reviewing judges are uneducated and
ineducable with regard to operational requirements and institutional design). And it
proposes an alternative normative perspective ('ordinary law' and superior courts tend to
favour not transcendent values, but the interests of the rich and powerful; distinctive
administrative regimes -- properly used -- are politico-legal technologies for the
achievement of social justice).
Because judicial review is the means by which adherents of the traditional view of
administrative law seek to trump the claims of those who favour administrative
autonomy, theoretical disputes over its legitimacy, scope, and consequences tend to
dominate debates between the two camps. But it turns out that judicial review is not quite
as powerful in practice as it is in theory. Courts are often more intrusive, and legislatures
and administrative bodies more elusive, than theory assumes. Not all questionable
administrative action is actually reviewed, and much non-questionable action is; not all
reviewing courts base their decisions on the principle of legality -- antipathy to the state,
sympathy for individual interests, ignorance of social context, and doctrinal confusion all
influence outcomes; and not all review proceedings produce the intended consequences --
legislatures find ways to constrain review or to cure its unwanted effects, while
administrative bodies develop techniques to immunize themselves against its invocation
or consequences.
The result is that the administration enjoys both more autonomy and less autonomy in
practice than it does in theory. Nonetheless, theory is what drives academic and
professional debates. Those debates -- and the unique empirical, functional, and
normative characteristics of the *799 administration that fuel them -- provide a context
for this essay. However, its main business is to examine, within that context, a number of
new theoretical issues, each in its way the result of the fact that the administrative state
has 'gone to market.'
It has done so in three senses. First, distributional and regulatory functions -- for so long
deemed intrinsically and inalienably the business of state administration -- are coming to
be regarded in this moment of neoliberal hegemony as wholly or partly the business of
market actors. Second, national and local markets -- whose regulation in the public
interest was always an important task for administrative agencies -- have in this age of
globalization become transnational markets. Such markets are beyond the reach of state
regulatory systems and, indeed, of almost all regulatory systems except those participants
choose to impose on themselves because they deem them expedient. Third, administrative
law -- whose ancient debates, rehearsed above, are arguably well past their sell-by date --
finds itself once again in the marketplace of ideas. New ideas about law, about the state,
and about governance are destabilizing the paradigms on which much previous theorizing
was based.

II John Willis on neoliberalism, globalization, and legal theory: An imagined

conversation
John Willis -- the inspiration for this special issue, this essay, and much of my own work
-- described himself as 'a "government man" ... who spoke with a "political science
accent."' [FN6] Despite that accent, however, it is unlikely that Willis used the terms
'globalization' or 'neoliberalism' even once in all his writings. [FN7] Nonetheless, Willis
experienced neoliberalism (or perhaps ur-liberalism) first-hand when the Great
Depression changed his life, and he had two close encounters with globalization. The first
came shortly after his graduation from Oxford, when he failed to secure a job with
Barclay's Bank in Chile. The second occurred in 1947, when he went to work for the
International Monetary Fund. Apparently, Willis produced no written account of why he
did so, what work he did there, why he left after a year, or what he learned from the
experience. This leaves me free to imagine a conversation with Willis in which he
explains how this short chapter in his long and interesting life might be relevant to recent
developments in administrative law.
Willis went to the IMF, I imagine him saying, because for a brief optimistic moment in
the mid-1940s, a new international order seemed *800 to be emerging. The spirit of that
moment is reflected in a series of ambitious texts: the United Nations Charter, the
Universal Declaration of Human Rights, the Philadelphia Declaration of the International
Labour Organization (ILO), the Havana Charter of the still-born International Trade
Organization, and the Bretton Woods agreements, which, it was thought, would help to
lay down new international financial foundations on which states could rebuild their
economies and ensure decent lives for their citizens. [FN8] The belief that states could
and should perform such functions was one Willis shared with many of his mentors and
contemporaries in those years of depression, war, and post-war reconstruction. [FN9]
And, odd as it may now seem, this belief inspired the IMF's original mandate -- to bring
stability to exchange rates, in support of the overall Bretton Woods strategy of ending the
disastrous international economic perturbations that had destabilized pre-war democratic
governments. [FN10]
Thus, Willis might tell me, the IMF seemed to be the international counterpart of the
many domestic regulatory agencies about which he had been writing enthusiastically
since he began publishing in the early 1930s. [FN11] Of course the IMF's mission and
character changed in the early 1970s, when it became the enforcing arm of neoliberal
globalization. It is tempting to imagine that Willis was prescient, that by leaving in 1948
he was registering an anticipatory protest against this shift; but I will resist temptation.
Still, I believe that if he were thinking about the IMF today -- if he were reflecting on the
whole complex project of neoliberal globalization -- Willis would identify as its most
unattractive feature the undermining of the state's main mission and the administration's
primary and most characteristic tasks: to curb private power, to distribute public goods,
and to guarantee social justice and equity. [FN12] He would, I think, be *801 highly
sceptical about claims that today's neoliberal, globalized economy, and the international
financial regimes that enable it, are advancing the cause of 'good global governance,'
constitutionalism, and the rule of law. [FN13] The IMF and the World Bank -- he would
point out -- have promoted the very neoliberal policies that make good governance so
difficult. They have subjected states to the finger-wagging of currency traders and bond
dealers, required them to liberalize their economies and deregulate their markets, and
advised them to offload responsibility for many public goods and services to corporate
providers or to communities and families. Globalization -- he would warm to his theme --
has meant that the state's regulatory authority is no longer congruent with its social and
economic responsibilities; its capacity to tax is no longer commensurate with its
commitments to spend; and it has struck many items off the domestic political agenda
and consigned them to bilateral and multilateral trade negotiations. Globalization and
neoliberalism are wonderful -- Willis would conclude ironically, as he often did -- but
most people don't seem to be richer, happier, or freer as a result.
What does this imagined conversation with Willis about globalization and neoliberalism
have to do with Canadian administrative law?
Canada is now one of the most open advanced economies in the world: some 60 to 70 per
cent of our GDP is attributable to either imports or exports (more than 80 per cent of
which involve the United States); we depend heavily on foreign (especially US)
investment; key sectors of the economy are wholly owned by foreign companies (auto
manufacturing) or largely so (petrochemicals and forest products); and, in consequence,
we are essentially a branch plant economy whose very existence depends largely on the
willingness of (mostly) American corporations to maintain their operations here rather
than repatriating them or transferring them to more amenable, lower-cost jurisdictions.
Finally, what would Willis have to say about the proliferation of theoretical perspectives
on administrative law? Not much, I think. Just as Willis's clear and compelling prose style
undoubtedly reflected his training in the classics, just as his early career was shaped by
his misadventures with neoliberalism and globalization, his views on administrative law
were inspired by the free-wheeling debates about legal and political *802 theory
emanating from the LSE and Harvard in the early 1930s. As David Dyzenhaus and
Martin Loughlin remind us, [FN14] as a young intellectual in the 1930s, Willis absorbed
social democracy, functionalism, and the other intellectual influences that shaped his
attitudes towards law and the state, provided him with a conceptual vocabulary and useful
analytical techniques, and launched him on his important and provocative scholarly work.
But although he used theory and perhaps even contributed to it, he was diffident about
Theory. He did not write about it often, explicitly, or comfortably. That is why I doubt
that he would have offered his wares for sale in today's new marketplace of ideas about
administrative law.

III Defining the boundaries of administrative law

Though disinclined to explicit discussions of Theory, Willis was nonetheless an astute
observer of new developments. He would surely acknowledge that the administrative
state has indeed gone to market in all the three respects I have identified -- neoliberalism,
globalization, and intellectual innovation -- and that the result has been a transformation
of administrative law. However, most legal practitioners and judges, and many
academics, would likely not agree. There is nothing to 'transform,' they would say.
Administrative law for them is, quite simply, the 'ordinary law' of judicial review; that
law changes, of course, but only as a result of doctrinal innovation and synthesis, not as a
result of exogenous influences such as politics, economics, or legal theory. As faithful
readers of law reports and standard legal treatises, they seldom encounter the
controversial notion that the Canadian state has undergone radical change (or, for that
matter, the equally debatable notion that it has not). That is not the sort of thing one reads
about in law reports, perhaps because the discourse of 'civil servants in the department of
dispute resolution' -- as Willis amiably described judges -- tends to be more detached,
conceptual, and conclusory, less engaged, reality-based, and pragmatic, than that of their
peers in most other government departments. This is not to say that judges are in fact
indifferent to social and political values, that legal concepts have no ideological content,
or that judicial decisions exist in an alternative reality to the globalized, neoliberal state in
which they are made and which they (inevitably if unintentionally) facilitate or help to
call into question. I will argue in the next section of this essay that judges do directly
engage with that reality from time to time, and occasionally even acknowledge its
existence. First, however, I want to challenge the notion that administrative law can be
defined as the law of judicial review.
*803 A proper definition of administrative law, in my view, ought to capture the
experiences not just of jurists but of the citizens, communities, corporations, civil
servants, commentators, and politicians who consume and produce it. Such a definition --
of what I will refer to as 'real' administrative law -- would have to be broad enough to
include all the complex and diverse normative regimes that organize, animate, and
regulate the administration of the state. [FN15] It would therefore encompass not just one
comprehensive system of administrative law but a congeries of systems of special law,
each indigenous to a particular field of state administration with its distinctive values,
rationalities, and culture. Judicial review, by contrast, is exogenous, not indigenous, to the
administration. Far from reinforcing the unique characteristics of special administrative
legal regimes, it exists precisely to make 'real' administrative law more 'ordinary,' to
subordinate it to universal, or at least constitutionally superordinate, principles. While to
some extent ordinary law clearly does 'organize, animate, and regulate the administration
of the state' -- if only in terrorem -- it often does so in ways that are indifferent to
functional requirements, inimical to state policy, and unpredictable in their long-term
consequences. 'Real' administrative law, then, may include the law of judicial review at
its margins, but it cannot be reduced to it.
Thus, precisely because 'real' administrative law is not the exclusive concern of jurists, it
is inappropriate to define it using juridical concepts exclusively or primarily, or to
approach it mainly from the advice-giving and adjudicative perspectives that are most
familiar to lawyers and judges. To come to the point, 'real' administrative law, in the end,
is concerned with how politics, economics, culture, social change, and discursive
strategies define the state's role in the lives of its citizens.
This is hardly a novel suggestion. No one who has read Dicey's fulminations against
collectivism, [FN16] Lord Hewart's huffing and puffing at 'the new despotism,' [FN17]
Willis on 'parliamentary powers,' [FN18] or, for that matter, Posner on the 'rise and fall of
administrative law,' [FN19] Frug on 'bureaucracy,' [FN20] or Panitch on 'democratic
administration' [FN21] can possibly believe *804 that administration and administrative
law can easily be disentangled from the political economy in which they operate. The
fundamental values, analytical tools, practical goals, institutional forms, key personnel,
and chosen methods of intervention of the administration and its law are all influenced by
political economy. Consequently, they change as it changes. The administrative law that
developed in an era when state agencies used typewriters and telegraphs has limited
relevance for states in an age of advanced information technology. The administrative law
designed to regulate behaviour in local or national markets is unlikely to operate
successfully in the global economy. The administrative law of the post-war Fordist
welfare state will differ markedly from that of the millennial neoliberal state. [FN22]
Thus, the juxtaposition of two very different definitions of 'administrative law' raises
questions about the importance or otherwise of judicial review; but it also implicates a
series of different, larger, and more difficult issues. First, assuming that judicial review
does warrant some consideration, however marginal, in a discussion of 'real'
administrative law, how do decisions of reviewing courts reinforce or reject or, for that
matter, even acknowledge Canada's new political economy? Second, what effects have
neoliberalism and globalization had on 'real' administrative law? And third, are the
emerging new discourses of administration and administrative law simply a consequential
effect of the transformation of the Canadian state, or are they a contributing cause as
well? I will deal with each of these questions in succeeding sections of this essay.

IV Judicial review in Canada's new political economy

What would a faithful reader of the law reports make of my claim that globalization and
neoliberalism are having a transformative effect on administrative law? In search of an
answer, I have scanned all administrative law (judicial review) cases decided by
Canadian courts from 1994 to 2004. [FN23] Amongst the several thousand cases scanned,
some sixty both *805 mention these aspects of our new political economy and address
substantive issues arising out of its impact on public policy, law, or administration.
An initial cluster of cases deals with issues thrown up by privatization and deregulation --
two important manifestations of neoliberalism (a concept which, however, is not
mentioned by name in any decided case). These comprise one group of twenty-three
cases in which deregulation and privatization affect employment rights, and a second
group of about ten cases in which businesses, communities, or other interested parties are
seeking either to forestall impending government action to deregulate or privatize some
public function or to secure relief against adverse consequences that neoliberal policies
have caused to the litigants, the environment, or the public interest more generally.
[FN24]
A second cluster involves cases that refer to NAFTA, the WTO, the IMF, or simply
'globalization.' These mostly consist of routine appeals from or applications for judicial
review of the Canadian International Trade Tribunal (ten cases) or other bodies concerned
with tariffs (four cases). Two cases involve applications for judicial review of arbitrators
appointed under Chapter 11 of NAFTA to decide disputes between American and
Mexican parties. Nine cases involve arguments as to whether open-textured language in
other regulatory statutes ought to be reinterpreted in light of globalization, free trade, or
continental economic integration under NAFTA or, more specifically, in light of trade-
related legislation such as the North American Free Trade Implementation Act. [FN25] In
six of those cases, the argument receives only cursory attention; in a seventh, it is rejected
outright; in an eighth it is mentioned by a dissenting judge; and in a ninth it prevails.
In the great majority of these cases, globalization and neoliberalism per se receive
marginal consideration and do not overtly determine legal outcomes. Rather, courts tend
to treat globalization and neoliberalism as *806 mere background or context and to
regard political economy issues as having been brought to closure by the statutory
enactments before them for interpretation and application. Indeed, reviewing judges in
almost all these cases interpret legislation and evaluate the fairness of administrative
procedures with all the concern for global economic impact, social justice, or institutional
dysfunction that they might deploy when interpreting a municipal parking by-law or
hearing an appeal against disqualification by the members of a lawn bowling team.
However, a few judges do confront the possibility that they are not merely the passive,
rule-bound executors of the formally enacted rules of the new political economy but
potentially its active architects and agents as well. Sometimes they reject that role. In R. v
Bryan, for example, the court turns aside a challenge to the constitutionality of a long-
established federal agricultural marketing agency:
[T]he globalization of trade and the political and economic changes that have taken place
in Canada ... do not impact on the constitutionality of [the Canada Wheat Board Act] ....
To the extent that the merits or desirability of such legislation may have changed ... this is
a matter for Parliament and not the courts. [FN26]
Sometimes they embrace it. In Sarrazin v. Canada (Minister of National Revenue), the
court was prepared to alter legal doctrine -- in this case, the meaning of 'employment'
under a tax statute -- because of changes in Canada's political economy due to
neoliberalism and globalization:
For some years there has been a trend towards generalized deregulation which can no
doubt be justified or explained by the globalization of trade and by the desire to increase
competitiveness while maintaining quality. These new rules are the reason for a number
of profound changes and the overturning of certain traditions, traditions which were well-
established and often deeply rooted in labour customs and practices. Job security is
disappearing and salary increases are linked more and more to surpluses generated by the
business. Computerization, scarcity of employment, the globalization of trade, fierce
competition and the difficult economic situation are themes which are now closely
associated with the language of labour relations. People now talk of freelancing, working
at home, piecework, work-sharing, rationalization of operations and cutting of production
costs, a large percentage of which is labour costs. In these circumstances, it must be
asked whether the traditional tests [of 'employment'] laid down by the courts are still as
relevant and whether they should be applied as strictly as before. [FN27]
*807 However, it is a rare judgment, such as Sarrazin, that explicitly acknowledges
globalization and neoliberalism as direct normative influences bearing on administrative
law. Even in the other sixty or so cases that deal with globalization and neoliberalism,
there is only a fleeting allusion to the fact that Canada's political economy may have been
profoundly and permanently reconfigured by these powerful forces. Should we therefore
conclude that Canada's new political economy has had little or no impact on
administrative law?
Obviously not. As I will show in the next two sections of this essay, neoliberalism and
globalization clearly do exert a powerful formative influence on government policy,
public administration, and administrative law, even if their normative influence seldom
comes clearly into focus in judicial review proceedings. What examination of these cases
shows us, then, is that judicial review is a distorted optic with which to view almost
anything -- the actual behaviour of administrative tribunals, the controversies that come
before them, the social context in which those controversies arise, and the larger
influences that shape that context.

V The administrative state goes to market, I: Neoliberalism

Whether as cause or effect, the rise of neoliberalism and the decline of social democracy
have been associated with profound changes in the agenda, the modalities, and especially
the perceived legitimacy of the administrative state. [FN28] A brief description of that
seismic political shift will explain why.
Social democratic ideas -- whether advocated by social democratic or by centrist parties
-- lost many adherents when they concluded that projects of the administrative state not
only frequently failed to achieve their worthy objectives but also often exacerbated the
very problems they were intended to remedy. Examples arguably include urban planning,
social housing, and employment insurance. Other defections are attributable to the allure
of 'market populism.' [FN29] Numbers of former social democratic voters or clients
became convinced -- despite much evidence to the contrary -- that their interests were
better served by 'choice' rather than state provision, by unfettered entrepreneurial freedom
rather than purposeful administrative intervention, and by low taxes rather than programs
of income redistribution. A third constituency of support fell away when its atavistic
members came to resent the administrative state not so *808 much for what it did but for
whom it served, and at whose expense. Once -- so they believed -- progressive
governments were dedicated to the best interests of 'people like us' -- hard-working, tax-
paying, no-nonsense, ordinary people; then, seduced by the arguments of self-serving
bureaucrats and self-deluded intellectuals, the state began to cater for 'people like them' --
women, visible minorities, immigrants, and Aboriginal peoples -- and for technocratic,
meritocratic, and cultural elites.
In many respects, it should be noted, the post-war successes of social democracy (and of
the state administrative apparatus that was its indispensable instrument) made its ultimate
decline more likely. Though the story differs somewhat from one country to another,
transformations in regimes of production and accumulation, changed contours of class
relations, and the emergence of new identities and interests were all in various ways
facilitated by the success of social democracy in taming the business cycle and achieving
a somewhat fairer distribution of wealth, power, and life chances. Still, social democracy
did not simply fall of its own weight. It was deliberately and imaginatively brought down
by neoliberals who used their intellectual, financial, organizational, and political
resources to persuade opinion makers, voters, and important sectors of civil society of the
rightness of their cause. What is important for present purposes, however, is not so much
why social democracy is in retreat (as it is, to varying degrees, in most advanced
democracies) but, rather, how the rise of neoliberalism has significantly altered the
prospects of the administrative state.
Neoliberalism, for its part, seeks to retrench the regulatory and welfare programs that for
two centuries have been the core concerns of public administration. This requires both a
change in discourse, so that people become used to thinking of the state as their oppressor
rather than as their provider and protector; and a restructuring of the state, so that its
intrusive and coercive powers can be permanently disabled, except perhaps those
required to enforce social discipline and ensure national security.

Welfare functions and income redistribution are easily despatched. In order to stimulate
the economy, we must leave private wealth in the hands of those who produce it; we must
dramatically reduce taxes; and we therefore cannot afford social programs. Regulation
likewise: the market knows better than any bureaucrat what is best for people. When
policy goals remain subject to some kind of public deliberative process, they can often
best be implemented by market-driven, rather than state-based, strategies. The sale of
effluent quotas is one example; [FN30] the *809 privatization of high-speed highways is
another. [FN31] Where, in the nature of the problem, a bureaucracy must be involved, let
it be a private bureaucracy, not a state bureaucracy. Privatized prisons would be a case in
point. [FN32] And finally, where the presence of a state bureaucracy seems inevitable,
that bureaucracy should be subjected to internal competition (e.g., school vouchers) or
something like it (e.g., comparative performance ratings for hospitals and universities),
or, as a last resort, to periodic, bottom-line evaluation (e.g., value-for-money audits).
How are these changes in administration accomplished? Sometimes they occur openly, as
when regulatory or equity-promoting legislation is amended or repealed. [FN33] But
often they are instituted by stealth, as when inspectorates are downsized, enforcement
officials advised not to show too much zeal, or activist tribunal members replaced with
those who will be more quiescent. [FN34] Whether accomplished openly or by stealth,
however, the stripping away of administrative powers and the dismantling of
administrative structures are not without risk.
Because people are likely to be concerned about reduced access to specific forms of
protection (water quality, consumer recourse, airport safety) or support (old age security,
health care), any appearance of indifference by government in these areas must be
avoided. On the contrary, governments must win people over to the notion that superior
services and more generous support will be provided by alternative means. Thus states
may encourage the adoption of corporate codes of *810 environmental and labour
standards; subsidize private health, day-care, or retirement savings plans though tax
expenditures; and require or permit airports and airlines to impose surcharges on
travellers to pay for air traffic control and ground security provided by private firms.
Such strategies, involving the substitution of private or self-regulation and provision in
lieu of state regulation and provision, enable governments to appear to be committed to
protecting and caring for people when in fact they are not. By way of further reassurance,
governments may announce that they will monitor private initiatives to ensure that public
interests are indeed being served; but sometimes -- notably in the Walkerton water
scandal [FN35] -- monitoring turns out to be desultory or non-existent.
How do such developments affect public administration? As state regulatory and welfare
activities are reduced, abandoned, or privatized, as the numbers of state employees
dwindle, as the powers and resources of state agencies succumb to attrition, as their
clienteles become increasingly disenchanted with them, public administration
experiences a loss of morale, vitality, and legitimacy. It thus becomes increasingly easy
for neoliberal governments to denigrate, de-fund, and dismantle state agencies.
What effect does this have on administrative law? As neoliberalism reverses previous
social democratic tendencies, administrative law -- 'the entire normative regime that
animates, organizes, and regulates the administration of the state' -- becomes an inversion
of its former self. The purpose of regulation is now to facilitate rather than to constrain
private conduct, of enforcement agencies to negotiate remedies rather than to impose
them, of social security systems to motivate recipients to support themselves rather than
relying on state funding, of public service providers to discourage, not facilitate, recourse
to their services (unless they are revenue generating, like Ontario's public liquor
monopoly). Over time, the substantive and procedural rules of administrative law are
likely to change, both formally and informally, to reflect these new values and policy
goals. Formally, change will manifest itself in amendments to legislation, new
regulations, and ministerial policy statements; informally, it will become evident in new
interpretations of exiting legislation, in new approaches to the organization of hearings, in
new rules of thumb that are applied to ensure consistency in the handling of recurring
instances, and in new approaches to the exercise of discretion in atypical cases.
Formal changes may provoke political controversy, but they are unproblematic in a legal
and constitutional sense. Governments are entitled to expect that the administration will
loyally adhere to the law and effectively execute the new policies, even if the old laws
and policies *811 might be the preferred choice of most civil servants. However, informal
change may well engender difficulties. So long as the former legislation remains on the
books and former policies and procedures have not been formally replaced -- which may
take some time -- civil servants will be faced with a choice. Some will adhere to the old
administrative law, either because they feel legally obligated to do so or because they are
psychologically, professionally, and ideologically committed to it. Others will begin to
implement the new administrative law out of conviction, for careerist motives, or because
of the convention that the civil service should support its 'political masters.'
Governments with a transformative program are thus also faced with difficult choices.
They must either reshape administrative law slowly, by compromises and gradual
measures -- with attendant delays and frustrations; or force through a comprehensive
legislative program -- with potential political costs; or conduct a frontal assault on
recalcitrant civil servants -- with long-term consequences for their morale, recruitment,
and productivity. Some recent experience -- notably that of Ontario's 1995 'common
sense revolution' -- suggests that neoliberals may have a preference for the latter two
approaches. During their first years of office, Ontario's Conservatives indeed made
significant legislative changes to both government programs and the machinery of
decision making and implementation, but at the same time they mounted an overt
campaign to intimidate public sector workers. They purged, weakened, or eliminated
administrative agencies perceived as committed to the old dispensation. And they moved
policy-related functions out of the hands of the public service to political operatives, so as
to ensure that government initiatives were not impeded by anachronistic commitments to
the former norms or to the policy communities that had a stake in them. [FN36]
Strenuous efforts to bring public employees and managers into line with new government
directions and operating procedures were not a unique feature of Ontario's radical
neoliberal government; its immediate social democratic predecessor made somewhat
similar efforts. [FN37] What is unusual, however, in Canada at least, is the extent to
which litigation was used to defend the old administration, the values for which it stood,
the interests with which it was associated, and the law that it generated and *812
disseminated. [FN38] Given Willis's famous distinction between lawyers' values and civil
servants' values, [FN39] he might be surprised to learn that in the late 1990s, lawyers
were being employed to defend civil servants' values. On the other hand, he would not
have been surprised to learn that despite a few successful rearguard actions, in the end the
political and legislative power of neoliberalism prevailed. [FN40]
'Real' administrative law, then, can be transformed by determined governments exercising
their constitutional, legislative, managerial, and political powers. So too traditional
administrative law -- the law of judicial review. Judicial review, as noted, is squarely
founded on the principle of legality: all state action must have a legal premise, all public
servants and public bodies must comply with the law. But what can be the role of judicial
review when public functions are allowed to slowly grind to a halt or abandoned
altogether, or when public regulation is expressed in contractual or private instruments, or
when new approaches, attitudes, and work routines are adopted under managerial
direction that neither needs nor finds expression in a statute or regulation, or when public
servants, without being ordered or asked, simply draw their own conclusions from a shift
in the political winds or from signals emanating from the market?
So long as the state continues its historic functions -- however imperfectly and indirectly
-- these deficiencies and defaults might conceivably be addressed in judicial review
proceedings. However, judicial review is more effective in dealing with administrative
overreaching than in dealing with underperformance. In principle, for example, statutory
rights to be provided with services or to have one's complaint heard promptly ought to be
legally enforceable regardless of government's failure to provide the necessary resources
to the relevant administrative agency. But courts have been reluctant to order explicit
rearrangement of public spending priorities, [FN41] though they sometimes do so
unwittingly *813 or as a collateral consequence of other relief. [FN42] True, the Charter
can be invoked to require governments to administer existing legislation so as to respect
equality rights, but judges have so far been reluctant to force governments to regulate
conduct that they do not wish to regulate. [FN43] Consequently, the Charter may do no
more than ensure that equality seekers are treated as badly as everyone else. Likewise,
Charter guarantees of 'life, liberty and security of the person' might conceivably provide a
basis for judicial intervention to force governments to maintain welfare or pension
benefits, or to make other forms of social provision. However, courts have so far declined
to use the Charter to require governments to adopt higher levels of welfare benefits
[FN44] or to process human rights complaints more rapidly or aggressively.
When administrative functions move from state to non-state agencies, attempts to
judicially review those functions raise additional and difficult conceptual questions.
[FN45] Do private-sector agencies that inherit the powers or functions of public-sector
actors also inherit the legal responsibilities of their predecessors, and are they likewise
amenable to judicial review on grounds of legality or otherwise? If governments delegate
administrative functions to non-state agencies, are they still liable for non-performance or
poor performance, and, if so, can they insulate themselves by appropriate contractual or
statutory language? Do private-sector recipients of state power themselves have access to
judicial review if the state sanctions them for purported non-performance, or do their
remedies depend wholly on the bargain they have struck with the state? If the purpose of
such delegation is to move service delivery from the familiar public-sector bureaucratic
model to a private-sector business model, will procedural requirements such as 'fairness'
continue to apply? If the purpose is to substitute 'self-regulation' or 'market regulation' for
state regulation, must states specify and enforce performance standards with which all
private agencies must comply? If the private agency performs regulatory functions, how,
by whom, and subject to what safeguards are *814 remedies or sanctions to be enforced?
These questions and others are not easily resolved by recourse to the legal doctrines
underlying judicial review, though perhaps answers may be found in the law of contract
or tort. [FN46]
Of course, in principle a case can be made for expanding the traditional scope of judicial
review in order to prevent abuses by private agencies and corporations that exercise
public functions or to make the receipt or exercise of such functions conditional on an
agreement to comply with standards comparable to those required of public bodies. This
logic is appealing. After all, if conferring statutory powers on a public authority triggers
the obligation to act legally and fairly, so too -- one might argue -- should the contractual
or statutory assignment of similar powers to private firms acting as proxies for the state.
[FN47] Indeed, the logic is almost irresistible. Many private actors do not perform
government-type functions, but their absolute size, market power, scope of operations,
and technological sophistication endow them with the capacity to inflict far more social
harm (or do far more social good) than state agencies. This development argues for a new
doctrinal approach that would hold both corporate and public bureaucracies to similar
standards and subject both to similar forms of review. [FN48]
If this were to happen, the surprising result would be that the sustained effort to liberate
corporate activity from regulatory constraints and public goods and services from state
monopolies has produced precisely the opposite result. However, in this era of
neoliberalism, to predict such an outcome requires the willing suspension of disbelief. On
the one hand, efforts to stipulate such standards in legislation or contractual provisions
will surely be resisted by corporations; indeed, the latter are likely to insist on privative
clauses or contractual immunities from such forms of accountability. On the other, courts
are likely to hold that corporations and other private actors are immune from judicial
review and from the application of administrative law doctrines and remedies. The reason
is only in part the longstanding (if contested) distinction between public and private law
concepts, doctrines, and procedures. Equally important is the fact that many judges may
not be unhappy to see *815 the state's powers diminished and the activities of the
administration truncated. This is not to say that judges follow general tendencies in legal
and political thought -- though they often do. Rather, it is to say that many judges were,
in this particular instance, ahead of the trends. As is well documented in the literature,
they mistrusted the administrative state both because they favoured markets and because
they viewed the administration as usurping curial functions. Now that they find their own
anti-regulatory predilections more closely aligned with those of the voters and the
legislature, they will feel vindicated, and self-imposed deference to administrative action,
where it exists at all, is likely to fall away quickly. This has already become evident as
Canadian courts have not only applied Charter requirements to administrative bodies,
[FN49] and retreated from the deference-promoting doctrines of CUPE, [FN50] but
increasingly hold governments 'accountable' by allowing individuals and corporations to
sue them for deliberate or negligent interference with their personal lives or commercial
expectations. [FN51]

VI The administrative state goes to market, II: Globalization

It is debatable whether globalization is designed to keep the world safe for neoliberalism,
[FN52] or whether that is merely its effect. Whichever might be the case, networks of
production and consumption, capital and service markets, transfers of technology and
intellectual property, corporate management, and law and consulting firms now extend
across national boundaries. The result is that many countries -- some more than others,
Canada more than most -- have become deeply immersed in the global economy and
hugely dependent on global trade and investment. Immersion makes them apprehensive,
and dependency makes them vulnerable to what is sometimes called regulatory
competition -- the need to reduce state regulation and taxation in order to attract foreign
investment or make local goods and services marketable to foreign purchasers. [FN53]
*816 Moreover, the global dissemination of technology, which in principle ought to
enhance the state's regulatory reach, has in fact had the opposite effect, as witness the rise
of communications satellites and the Internet, which have effectively undermined
domestic regulation in fields ranging from financial services to broadcasting to taxation
to consumer protection to protection of privacy to the porn trade. [FN54] Liberal
legalism, supposedly the ideal framework for global markets, in fact turns out to be too
slow and cumbersome to operate effectively within the volatile environment created by
high-speed global capitalism. [FN55]
Finally, the more rapid and extensive dissemination of ideas and information vastly
complicates the making and implementation of national policy. Rumours of policy are
more easily detected and publicized abroad; policy itself is more transparent to more
people in more countries. As a result, states may be deterred from policy initiatives that
they deem to be in their own best interests and within the scope of their sovereign powers
because they are reluctant to risk adverse reactions from international financial
institutions, fellow members of trade regimes, social movements, corporate investors, or
irate consumers. And they may be held accountable politically and economically, if not
legally, for the way in which they enforce or fail to enforce their own laws at home (as
under the NAFTA labour accord, the NAALC) [FN56] or for allowing their citizens to act
abroad in disregard of the wishes of other states (as in the case of Canadian companies
sanctioned by the United States for violating its boycott of Cuba). [FN57]
*817 For all these reasons, then, the policies that animate administrative activity --
including social and economic regulation and redistributive fiscal policies -- can no
longer be conceived, debated, enacted, or applied in a purely domestic context, without
regard to how national interests are liable to be affected by the global political economy.
Perhaps it might be argued that globalization per se is not the problem, that neoliberalism
itself explains the reluctance of states to use their undisputed sovereign powers to
regulate corporate activity within their own borders or to hold the corporations they
charter accountable for their conduct abroad. However, there is a crucial distinction
between domestic and global neoliberalism. Domestic neoliberalism can in principle be
overthrown or modified at the next election; global neoliberalism cannot. It is, in effect,
constitutionally entrenched. [FN58] The WTO and other long-term treaties forbid
governments from adopting a more interventionist stance with regard to market-related
activities or, at the very least, create significant disincentives to such behaviour. If states
are accused of violating treaty terms by regulatory 'takings' or other constraints on the
market freedom of foreign traders and investors, their conduct will be judged not by
international courts with broad jurisdiction but by specialized trade tribunals or private
arbitrators endowed with power to impose significant retaliatory sanctions or large
damage awards. [FN59] If states once start down the road of neoliberalism, trade treaties
may prevent them from turning back. For example, the General Agreement on Trade
Related Services (GATS) effectively provides that, once privatized, public services
cannot be reabsorbed into the state sector unless the private providers are compensated
for lost future profits. [FN60] If states attempt to regulate aggressively within the residual
area permitted by trade treaties, they may be inhibited by general principles of domestic
and international law that place extraterritorial activities beyond the jurisdiction of
domestic regulators and offshore assets beyond the reach *818 of domestic tax collectors.
Finally, legal considerations apart, states like Canada can ill afford to pursue domestic
economic policies that might provoke or offend their large and powerful 'relevant others.'
Thus, formal and informal constraints imposed by globalization reinforce neoliberalism
and deter regulatory initiatives. [FN61] It is true that states technically retain their
sovereignty, that they can resign from trade regimes, and that they can resume more
interventionist policies if they wish. But resignations take effect only after lengthy notice
periods, disentangling their economies from those of their trading partners is likely to be
painful, and 'going it alone' in a globalized world is a daunting prospect. Consequently,
having once committed to the global economy and its regional manifestations, few states
are likely to change course, even if they have the right to do so. It is in this sense that
globalization and neoliberalism must be understood as 'constitutionally entrenched.'
It is thus the misfortune of 'real' administrative law in this age of entrenched neoliberal
globalization to bear a social-democratic gene and to be quintessentially local not only in
its juridical origins but in its unique political and functional characteristics. [FN62]
Prospects for reproducing the social democratic state and its administration at the
transnational level are poor. There are few permanent or effective transnational social
movements, little sign so far of an emerging transnational civil society, only the most
preliminary transnational political processes through which new progressive coalitions
might be built, few transnational forums in which a critique of neoliberalism can be
expressed, and no democratically elected transnational legislature (with the singular and
imperfect exception of the European Parliament). Hence there is little likelihood of the
early emergence of a transnational administration that might implement new regulatory
strategies or welfare programs if these should somehow win the support of an as yet
unconstituted global public and be endorsed by an as yet unimaginable supranational
legislative process.
On the contrary, the devil has all the best tunes. The most formidable international
institutions -- the WTO, NAFTA, the World Bank -- operate to facilitate trade, not to
advance the rights of workers, consumers, and investors; to reduce the reach of state
regulation, not to extend it. Thus, many specialized international tribunals concerned with
banking, intellectual property, transport, and tariffs have been established by *819
bilateral or multilateral treaties, operate according to the command model characteristic
of domestic courts, and, presumably, elicit some degree of compliance by signatory states
and, ultimately, by non-state actors. [FN63] Moreover, some effective non-state regimes
of transnational regulation have been created that deal successfully with, say, technical
standard setting or the allocation of Internet domain names. [FN64] These institutions and
regimes succeed because states have been willing to suspend or limit the exercise of their
own sovereignty in the hope of promoting trade and securing beneficial economic
outcomes, and because corporations are prepared to do likewise for similar reasons.
However, with the debatable exception of international human rights, few effective
international regimes have been developed to protect social and economic rights or
entitlements to public goods and services -- the longstanding concerns of domestic
administrative law. When it comes to the environment, consumer interests, or labour
standards, neither states nor corporations seem much inclined to subordinate their
sovereignty, or lend their power, to experimental inter-state and non-state regimes. Such
issues are treated as 'soft law,' given international effect (if at all) by subtle discursive
processes such as 'comitology' [FN65] or relegated to the care of national administrative
regimes. To take one example, the ILO promulgates labour standards through a tripartite
labour--management--government process, promotes their adoption by member states,
provides technical assistance to facilitate compliance, and investigates and reports
publicly on non-compliance. However, while in theory it can suspend states for non-
compliance, observers have often sadly remarked that the ILO is essentially 'toothless.' To
take another example, the World Health Organization works with national and
transnational partner agencies to identify and suppress epidemics, eradicate endemic
diseases, create international benchmarks, and promote good health policies and
practices; but in the end, it has few resources and depends largely on the *820 operational
cooperation of domestic health systems or ad hoc campaigns financed by international
donors. [FN66] A third example: while UN agencies such as the World Food Program and
UNICEF replicate in the international sphere some of the classic welfare functions of
national governments, [FN67] they too lead a financially precarious existence and operate
only with the acquiescence of host states.
These international administrative regimes, then, arguably generate 'real' administrative
law much as their domestic counterparts do. But with important differences: they depend
to an unusual degree on the cooperation and support of key actors, often including those
whom they are regulating or replacing; they seldom have extensive inspectorates or
expert analysts to enable them to detect, investigate, or evaluate possible regulatory
violations; and they typically lack coercive powers. The question then becomes whether,
absent many of the distinctive institutional features that help to make domestic
administrative regimes effective, one can expect transnational regimes to achieve similar
levels of success. This is an empirical question and must be answered on a regime-by-
regime basis.
Perhaps it is true, as some scholars have argued, that 'real' administrative law is emerging
in the international or transnational domain. [FN68] And perhaps it is also true (as I
suggest below) that the search for a useful conceptual vocabulary to describe
international and transnational developments will demonstrate the salience of these new
discourses for domestic administrative law. However, it is highly improbable that the
removal of the financial, supervisory, investigative, tutelary, and sanctioning powers of
states from the equation of regulation will improve the quality of outcomes.

*821 VII The administrative state goes to market, III: New discourses of state and law
Administrative law has been reconfigured not only as a result of the changes in political
economy wrought by neoliberalism and globalization but also by the emergence of new
discourses of state and of law. These discourses have proposed new paradigms of public
administration and administrative law that challenge the traditional models that have
shaped thinking in the field at least since the 1930s (if not the 1830s). [FN69] I briefly
alluded to the traditional paradigm at the beginning of this essay. Greater detail is now
required.
The traditional model assumes, first, that administrative law is essentially instrumental in
character, that it is intended to achieve public policies enshrined in a statute or in
subordinate legislation. Second, administrative tribunals and agencies -- almost from their
inception in the 1830s -- have been depicted as 'governments in miniature,' in flagrant but
unflagging defiance of the principle of the separation of powers. Thus, they created their
own 'legislation' by the formal promulgation of regulations, the adumbration of non-
binding guidelines and interpretations, the development of technical standards, the
adoption of informal practices and operating procedures, and other familiar bureaucratic
strategies. They secured adherence to that 'law' through executive action, such as
disseminating information and advice; requiring the keeping of records for inspection and
audit; maintaining surveillance and inviting whistle blowing; distributing rewards for
conforming conduct or withholding them to punish non-conformity; encouraging
symbolic and mimetic behaviour, such as self-regulation, designed to promote the
internalization of official norms; and ceaseless nagging, cajoling, threatening, harassing,
negotiating, and mediating to secure compliance.
Finally, most administrative regimes had a reserve power to seek formal adjudication and,
if necessary, to invoke enforceable remedies or sanctions. Usually that power was used
sparingly. However, when adjudication did occur in an administrative context, it often
departed from the curial model. Its distinctive characteristics included the specificity of
the issues (administrative tribunals do not exercise general jurisdiction); the idiosyncratic
adjectival character of the proceedings (party participation, pleadings, evidentiary rules,
and so on may differ from those of courts); the specialized knowledge and experience of
decision makers (administrative tribunal members, often assisted by expert staff and
themselves presumptively qualified to handle technical issues, comprehend the social
context of the controversy, understand the legislative purpose and strategy, and address
the systemic implications of particular interpretations *822 and procedures); and the
availability of an unusual repertoire of remedial powers (typically more flexible,
invasive, symbolically potent, and long-lasting than those available to courts).
This, of course, is an idealized account of the traditional model of administrative regimes.
Some departed radically from the model; others conformed to it but proved inept or
abusive; still others attracted bitter criticism for simply doing what they were mandated
to do. Hence the long-lasting controversies around the rule of law, judicial review, and
other topics canvassed at the beginning of this article. Still, like all ideal types, the
traditional paradigm of administrative agencies would not exist if it had not somewhat
approximated reality -- or at least our understanding of reality. That reality, however, is in
the process of being revised. This is being accomplished not only through developments
in domestic and international political economy, noted above, but by new discourses of
state and law. These are disseminated by a process I have described as 'globalization of
the mind,' whereby a new conventional wisdom and a new way of understanding that
conventional wisdom come to be accepted across a transnational discursive community
comprising civil servants, politicians, professionals, business people, policy analysts,
journalists, and academics. [FN70]
The central assumption of the new conventional wisdom is that neoliberalism and
globalization, in some form, are not only inevitable but generally positive determinants of
public policy, and therefore of public administration. [FN71] The logic of this assumption
requires the reinvention of government [FN72] and the deployment of a 'new public
management,' [FN73] with *823 two complementary mandates. Job one is to implement
the strategies of free trade, deregulation, and reduced public expenditure. [FN74] Job two
-- described sometimes with resignation, sometimes with enthusiasm -- is to ensure that
the remaining elements of the old interventionist state reinforce the new policy direction,
not only by avoiding unnecessary substantive constraints on business but by internalizing
business values and adopting business methods.
Thus, the new public management contemplates that public administrators will focus on
ends not means; that they will 'steer, not row'; that many public and private actors will
shape and execute public policy, not excluding the very people whose activities public
policy is meant to control; and that execution will occur in a variety of domains, both
public and private, through a variety of means, not necessarily including adjudication or
recourse to the state's coercive powers.
The widespread dissemination of these ideas, and the speed with which they have spread,
is surprising. [FN75] Less surprising, however, is their limited success in actually making
it possible for governments to do more *824 with less (or even to do less with less).
Nonetheless, the new public management represents a significant revision of the post-war
paradigm of administrative law and of the careers and behaviours of the civil servants,
tribunal members, and politicians who inhabited, energized, and, arguably, exhausted it.
[FN76] Old norms for administrative intervention are replaced by new norms: curbing the
abuse of private power and protecting the public interest was once the mission of most
regulatory agencies; facilitating optimal market conditions is a more typical mandate
today. Old actors are replaced or overshadowed by new actors: proactive ministries and
administrative agencies, intrusive inspectorates, and tribunals with powerful remedial
powers are to play a lesser role; a larger one is assigned to private-sector institutions and
to the 'invisible hand.' Old modalities of administrative intervention are superseded by
new modalities: the requirement to conform to law, fairness, and rationality has less
significance when major administrative actors are no longer creatures of statute, do not
engage in adjudication, and are meant to be profitable or efficient rather than fair or
reasonable.
The second innovation involves the emergence of a global discourse around
constitutionalism, human rights, and the rule of law. This discourse rests on a new (or
revived) constitutional paradigm in which courts are located on a plane above all other
public institutions. [FN77] Law, it seems, cannot rule without courts; constitutions cannot
shape public values or institutions if courts cannot interpret and enforce them; rights will
not survive if courts are not their primary guarantors. Of course, this is a very imperfect
description of how the rule of law actually operates in most advanced democracies. Law
'rules' in all social fields, but not necessarily state law; it rules with little actual recourse
to formal adjudication; and formal adjudication occurs in many contexts other than
courts. Functioning democracies often have constitutions that are largely non-justiciable
(e.g., the United Kingdom) or only partly so (e.g., Canada), while countries with
elaborate constitution-based systems of judicial review are often far from being
exemplars of democratic practice or administrative effectiveness (e.g., the United States).
*825 However, despites its problematic aspects, we must now consider how the current
worldwide upsurge of interest in constitutionalism might affect administrative law.
[FN78] From what we know about the antipathy of courts to state activism, about their
concern for private interests and property rights, about their inaccessibility to the poor
and powerless, about their limited range of fact-finding techniques and their
demonstrated incapacity to analyze social and economic data, and about their meagre
repertoire of remedial strategies, when judges exercise their constitutional mandate to
review administrative action, they are as likely to forestall administrative action --
deliberately or inadvertently -- as to facilitate it. Moreover, having become the
indispensable tribunes of the project of constitutionalism, the judiciary now has a new,
more attractive vernacular in which to express its historic antipathy to the administrative
state.
As a result, in this era of hyper-constitutionalism, administrative agencies may become
increasingly litigation averse, fearing confrontation with a re-energized judiciary, and
therefore less aggressive in pursuing their mandate to protect the public interest.
Aggrieved parties to administrative proceedings, especially corporations with deep
pockets, have long used constitutional litigation, and judicial review more generally, to
diminish the resolve of regulators, devour their budgets, and demoralize their staffs. But
now the practice has become more widespread as NGOs and individual litigants are being
habituated to perceive constitutional litigation as a 'silver bullet' that will vindicate their
beliefs, interests, or 'rights' at relatively low cost and with conclusive results. Even if one
accepts this perception, for which confirming evidence is slight, [FN79] it has the
unfortunate effect of tempting advocacy groups to turn away from strategies that once
seemed promising: the invocation of existing administrative processes or political
mobilization to demand new regulatory interventions by the state. This trend will only
intensify as neoliberalism and globalization reduce the capacity of administrative
agencies for successful intervention. The effect will be to exacerbate relations between
administrative agencies and social movements and to strip the administration of the moral
legitimacy and popular support it once enjoyed as the practical and symbolic custodian of
social justice strategies.
*826 The new constitution-based paradigm of administrative law, in short, invites us to
abandon our faith in specialized, semi-autonomous, and expert administrative bodies, to
cease worrying about judicial intrusion into democratic politics, to wind down our
expectations that state power will be used to limit private power and -- inevitably -- to
accept an enlarged domain of private power. That perhaps is why so many of the leading
theorists, advocates, and institutional shapers of globalization and neoliberalism have
argued for constitutionalism and the rule of law. [FN80]
But why human rights? For many reasons: because proponents of constitutionalism and
the rule of law actually believe in human rights; because the human rights motif makes
disempowerment of the administration a plausible project; because citizens have been
persuaded to abandon solidaristic mass movements with class-based identities for new
identities as individualistic bearers of rights; and because corporations, unlike
individuals, will be able to use the new human rights discourse in litigation to protect
their own freedom of expression (to advertise commercial products), freedom of
association (to finance friendly political parties or advocacy groups), rights of private
property (to be free from taxation and regulatory takings), and due process rights (to be
tried in conventional courts that cannot and will not effectively control them, rather than
in specialized administrative agencies that might be able to do so).
It is important to acknowledge, however, that human rights, constitutionalism, and
judicial review would not enjoy such prominence in the new administrative law discourse
if they were merely part of an anti-state, anti-regulation campaign mounted by
neoliberals, large corporations, the World Bank, and their allies and dupes. In fact, survey
after survey reveals that people trust and respect judges more than politicians, and that
bills or charters of rights are enormously popular. [FN81] In other words, the new
paradigm -- the paradigm that displaces the paradigm of administrative law that began in
the early nineteenth century -- is powerful, has democratic legitimacy, and is not about to
collapse in the face of evidence or argument that what it promises it cannot deliver and
what it delivers is not what it promises.
*827 Not surprisingly, true friends of the activist state and its administrative
manifestations have developed their own compelling critique of the traditional paradigm,
thereby contributing a third strand of revisionist discourse.
The administrative state, they say, has failed to achieve its objectives; when it has
achieved its objectives, it has sometimes inflicted collateral damage on vulnerable client
communities; when it has avoided inflicting damage, it has nonetheless failed to win their
confidence. In sum, even when the state's administrative interventions have been benign
and effective, they remain vulnerable to delegitimating criticism because the
administrative state itself is, or is perceived to be, neither open nor accountable. This
democratic deficit, real or imagined, explains why ordinary citizens have ceased to be
interested in politics or supportive of the very policies and institutions that have vastly
improved their lives. [FN82] Proponents of 'democratic administration' therefore
advocate new, participatory approaches to public administration and point to the success
of various innovations, especially at the level of local government, where they are most
likely to engage citizens in governance issues of immediate concern to them. [FN83]
The case for more meaningful citizen participation in government is clearly an attractive
one. However, a number of issues remain unresolved. First, strategies for citizen
participation that succeed at the local level do not necessarily translate to the national or
the transnational level. Second, some proponents of democratic administration are
anxious to energize government, to make it more responsive, even proactive; but a
strategy designed to promote state activism seems unlikely to win widespread support in
this neoliberal era. Third, proponents of democratic administration assume that the
efficacy of state action will be enhanced, or at least not diminished, by citizen
participation; but the opposite may be the case, especially if democratic participation
makes administrative processes more time consuming and consensus dependent. Finally,
democratic administration assumes that citizens wish to participate; but it does not reckon
with Oscar Wilde's famous lament about socialism: 'it would be fine if there were not so
many committee meetings.'
This last concern may turn out to be the most serious. Democratic administration and
citizen participation in general are rooted in a civic culture that has deteriorated
significantly over the past generation or two, as Robert Putnam and others have noted.
[FN84] The causes of that *828 decline are complex, though few would argue that it has
resulted only from the rise of state bureaucracy and the decline of opportunities for
citizens to influence decisions that affect their lives. Still, the democratic administration
school, and other proponents of deliberative democracy, [FN85] do remind us that to
frame the fundamental debate in administrative law as a clash of lawyers' values and civil
servants' values -- Willis's binary distinction -- is to truncate it unnaturally. An effort must
be made to engage citizens' values as well, even though neoliberalism has alienated most
citizens from the very notion of the activist state and globalization has removed many
important structures of governance even farther from their scrutiny.
That effort highlights a fourth new strand of discourse: the potential of information
technology to repair the deficiencies of governance and administration. [FN86]
Technology may well revolutionize public administration. It may enhance service
delivery, reduce labour costs, prevent the abuse of administrative discretion, reach across
jurisdictional boundaries, and link adjacent administrative systems so as to achieve better
coordination amongst them. Better yet: technologically enhanced communication may
facilitate citizen involvement in administration. Through technology, citizens may be
better able to secure access to information, mobilize into advocacy groups, and register
their individual and collective views in timely and effective fashion. Thus empowered by
technology, citizens may exert greater influence over administrative decision makers.
But alas, technology may also enable greater administrative control over citizens.
Technological barriers may become even more effective than traditional bureaucratic
ones in deflecting citizen inquiries and complaints; record-keeping about and surveillance
of citizens may become more pervasive; sanctioning systems may become more intrusive
and efficient. [FN87] And alack, greater access to technology may enhance the
advantages already enjoyed by affluent and influential corporations, interest groups, and
individuals. Technology may help them to operate more secretively, to move offshore
beyond the effective reach of state regulators or to slip through the cracks of statutory
controls that have become anachronistic because technology changes faster than
legislators *829 can legislate. [FN88] Worst of all, technology may allow corporations to
mobilize popular support (or to simulate it) in order to discredit or delegitimate
regulatory initiatives. It is an open question, then, whether information technology will
revitalize administrative law or ruin it.
A final innovation in administrative law discourse begins by acknowledging the existence
of 'law without the state.' This strand encompasses a number of quite different
perspectives -- legal pluralism, [FN89] reflexive theories of law, [FN90] regime theory,
[FN91] social regulation, [FN92] Foucauldian 'governmentality,' [FN93] and many
others. What unites them is the premise that public government and private governance
exist on a continuum of forms of social ordering, that the presence of the state in any
given instance is purely a matter of historical contingency, that descriptions or
explanations of normativity that fail to accommodate its varied provenances and
expressions are radically incomplete, and that any usage that attempts to privilege one
form over another is not only scientifically misleading but, in given situations, prima
facie evidence of a project of domination.
At one level, this approach encourages us to equate state with non-state forms of
regulation and to accept the two as functionally interchangeable. If subordinate
legislation emanating from a government ministry is regarded as a first cousin to
corporate by-laws (which, in a way, it is), why should it be given greater respect or
deference? If new remedies *830 are developed to protect people against corporate
malfeasance, why not extend those remedies to state agencies and officials? At another
level, this conflation of state and non-state forms of governance encourages de-
politicization. If all influences that shape social behaviour can be referred to as
'regulation' -- if state regulation, therefore, is merely a historically determined variant
rendered anachronistic by the emergence of new regimes of accumulation -- why should
we attempt to preserve the familiar strategies of the administrative state that were
designed to protect the environment, workers' rights, or consumer safety? If reflexivity is
the best explanation of why corporations and other institutions behave as they do, why
should we not simply allow or encourage them to develop their own self-regulating
systems of administration, and abandon the use of state powers to secure desired
standards of conduct?
One can hardly label such questions inappropriate, nor can one ignore the fact that the
answers often tend to be dismissive of state regulation and administration. In the end,
however, it is not the answers that matter, but the questions themselves. The consequence
of raising them at this particular historical moment -- even if unintended -- has been to
denigrate and delegitimate the administrative state, especially among the academic and
professional constituencies that were once its principal architects and operatives.
The implications of these new discourses of administrative law are thus significant. They
describe, prescribe, and actually help to accomplish changes in ordinary people's
understanding of what the state is, does, and ought to do; they influence judicial doctrine
and demeanour that -- despite protestations of 'deference' -- exhibit little understanding of
or sympathy for the administrative state; and, ultimately, they influence key political and
bureaucratic actors and reshape the structures and processes of public government itself.
Added to the problems of administrative law that have their origins in neoliberalism and
globalization, these discursive innovations represent a formidable -- arguably fatal --
challenge to the old paradigm in which state legislation and public administration were
considered indispensable to the achievement of social justice.

VIII Conclusion: The administrative state cries 'wee, wee, wee' all the way home
I began by rejecting on empirical, functional, and normative grounds the traditional
lawyers' assumption that administrative law consists in the exercise of judicial review to
enforce obedience to the rule of law by state agencies and actors. By proposing an
alternative definition of 'real' administrative law as 'all the complex and diverse
normative regimes that organize, animate, and regulate the administration of the state,' I
have tried to bring into focus not only the functional specificity, institutional *831
idiosyncrasy, and normative variety of administrative regimes but also their historical
association with social democracy. Those characteristics and that association imply a
necessary connection between administrative law and political economy. However, as my
survey of ten years of Canadian case law shows, a rule-of-law-based, judicial-review-
driven understanding of administrative law largely obscures the existence of any such
connection.
By contrast, I suggested, an analysis that begins by acknowledging that the Canadian
state has 'gone to market' -- by identifying neoliberalism and globalization as the
dominant forces of its political economy -- might better explain the transformation of the
state and its administration. This transformation in political economy, in my view, is
inevitably leading to the transformation both of the conventional paradigm of
administrative law and of 'real' administrative law. Both paradigms of administrative law,
I suspect, are also being transformed by a third influence -- the emergence of new,
destabilizing theories of state and law.
This account of the state's three visits 'to market,' I hope, makes credible my initial
argument. It shows how normative pluralism and functional specificity challenge the
logic and practicality of the rule of law as a foundation for judicial review and of judicial
review as the intellectual core of administrative law. Neoliberalism rejects the notion of
state power as a potential good in itself and repudiates the moral imperatives underlying
the social democratic administrative state. Globalization renders dysfunctional any
system based on national policies, laws, and institutions. And the new discourses of
administrative law render less and less plausible any notion that the rule of law -- national
or transnational, constitutional or doctrinal, implicit or explicit, administrative or
'ordinary' -- has the capacity to achieve coherence and command compliance.
A new agenda thus awaits the attention of administrative lawyers. The decline of social
democratic values is an important item on that agenda; so too is the de-centring of
politics and the dilemma of how to confront power in a world with dysfunctional polities;
so too is the need to find new strategies to mediate the relations between and among
national and transnational courts, agencies, and civil society actors; and so too is a new
vocabulary to describe the complex universe of functional, normative, and discursive
pluralism.

[FNd1]. I am grateful for financial support from Osgoode Hall Law School and York
University's SSHRC Small Grants program; for research assistance from Michelle
Dagnino, Michael Rutherford, and Emily Lawrence; and for insightful comments from
my fellow contributors to this special issue of the University of Toronto Law Journal.

[FNa1]. University Professor of Law and Political Science, York University.

[FN1]. I have developed this idea in Without the Law: Administrative Justice and Legal
Pluralism in Nineteenth Century England (Toronto: University of Toronto Press, 1985)
[Without the Law]. For a somewhat similar account see Peter Lindseth, "'Always
Embedded" Administration: The Historical Evolution of Administrative Justice as an
Aspect of Modern Governance' (2004) (University of Connecticut School of Law
Working Paper Series No. 19), online: Nellco Repository
<http://lsr.nellco.org/uconn/ucwps/papers/19>.
[FN2]. See generally T.R.S. Allan, 'The Constitutional Foundations of Judicial Review:
Conceptual Conundrum or Interpretative Inquiry?' (2002) 61 Camb.L.J. 87.

[FN3]. Carol Harlow & Richard Rawlings, Law and Administration (London:
Butterworths, 1997) at 67.

[FN4]. John Willis, 'The McRuer Report: Lawyers' Values and Civil Servants' Values'
(1968) 18 U.T.L.J. 351 ['McRuer Report'].

[FN5]. Crevier v. Attorney General of Québec, [1981] 2 S.C.R. 220.

[FN6]. Michael Taggart, 'From "Parliamentary Powers" to Privatization: The Chequered

History of Delegated Legislation in the Twentieth Century' 55 U.T.L.J. 575 at 584.

[FN7]. For an eye-witness account of how the Library of Congress officially

acknowledged globalization for the first time in 1999 see Harry W. Arthurs, 'Reinventing
Labor Law for the Global Economy' (2001) 22 Berkeley J.Employ.Labor L. 271 at 273.

[FN8]. See generally John G. Ruggie, 'International Regimes, Transactions and Change:
Embedded Liberalism and the Postwar Economic Order' (1982) 36 Int'l. Org. 379.

[FN9]. See, e.g., R. Blake Brown, 'The Canadian Legal Realists and Administrative Law
Scholarship 1930-1941' (2000) 9 Dal.J.Legal.Stud. 36; R.C.B Risk, 'Lawyers, Courts and
the Rise of the Regulatory State' (1984) 9 Dal.L.J. 31.

[FN10]. For an accessible account, see 'Conference at Bretton Woods' Pamphlet No. 4,
Pillars of Peace: Documents Pertaining to American Interest in Establishing a Lasting
World Peace (Carlisle Barracks, PA: Book Department, Army Information School, 1946)
at p. 30 ff, online: Biblio.org <http:// www.ibiblio.org/pha/policy/1944/440722a.html>.
[FN11]. See, e.g., John Willis, 'The Delegation of Legislative and Judicial Powers to
Administrative Bodies' (1932) 18 Iowa L.R. 150; John Willis, The Parliamentary Powers
of Government Departments (Cambridge: Harvard University Press, 1933)
[Parliamentary Powers]; John Willis, 'Three Approaches to Administrative Law: The
Judicial, the Conceptual and the Functional' (1935) 1 U.T.L.J. 53; John Willis, ed.,
Canadian Boards at Work (Toronto: McMillan, 1941).

[FN12]. Perhaps unlike some contributors to this symposium, I doubt that Willis's Fabian
socialist belief in the positive potential of the state and its administration would have
blinded him to the deficiencies, perversions, and oppressions of which both are capable.
After all, he witnessed the rise of fascism, World War II, and the bitter post-war schism
on the left between social democracy and Stalinism. However, Willis was profoundly
sceptical about the ability of courts to recognize injustice when they saw it -- whether
perpetrated by the state or by non-state actors -- or to remedy it when necessary.

[FN13]. See, e.g., Kerry Rittich, 'Functionalism and Formalism: Their Latest Incarnations
in Contemporary Development and Governance Debates' (2005) 55 U.T.L.J. 853;
Boaventura de Sousa Santos, 'Law and Democracy: (Mis) trusting the Reform of the
Courts' in Jane Jenson & Boaventura de Sousa Santos, eds., Globalizing Institutions:
Case Studies in Social Regulation and Innovation (London: Ashgate Publishing, 2000)
253.

[FN14]. David Dyzenhaus, 'The Logic of the Rule of law: Lessons from Willis' (2005) 55
U.T.L.J. 691; Martin Loughlin, 'The Functionalist Style in Public Law' (2005) 55 U.T.L.J.
361.

[FN15]. Harry W. Arthurs, 'Rethinking Administrative Law: A Slightly Dicey Business'

(1979) 17 Osgoode Hall L.J. 1.

[FN16]. A.V. Dicey, Lectures on the Relation Between Law and Public Opinion in
England during the Nineteenth Century, 2d ed. (London: Macmillan, 1914).
[FN17]. Lord Hewart, The New Despotism (London: Ernst Benn, 1929; reissued 1945).

[FN18]. Parliamentary Powers, supra note 11.

[FN19]. Richard Posner, 'The Rise and Fall of Administrative Law' (1997) 72 Chi-Kent
L.Rev. 953.

[FN20]. Gerald Frug, 'The Ideology of Bureaucracy in American Law' (1982) 97

Harv.L.Rev. 1276.

[FN21]. Leo Panitch, 'A Different Kind of State' in Greg Albo, David Langille, & Leo
Panitch, eds., A Different Kind of State? Popular Power and Democratic Administration
(Toronto: Oxford University Press, 1993) 2.

[FN22]. See, e.g., Jon Pierre, 'The Marketization of the State: Citizens, Consumers and
the Emergence of the Public Market' in B. Guy Peters & Donald Savoie, eds.,
Governance in a Changing Environment (Montreal: McGill-Queen's University Press,
1995) 55; Isabella Bakker & Riel Miller, 'Escape from Fordism: The Emergence of
Alternative Forms of State Administration and Output' in Robert Boyer & Daniel Drache,
eds., States versus Markets: The Limits of Globalization (London: Routledge, 1996) 334.

[FN23]. An electronic scan was undertaken of all 'administrative law' cases reported in
Canadian law reports from 1994 to 2004. Within that universe, all cases that used any of
the following terms were identified: globalization, NAFTA, WTO, IMF, privatization,
deregulation. In total, the search produced some seventy-five 'hits,' including multiple
citations of the same case. In all but about sixty cases, references to the relevant search
terms turned out to be non-substantive. Had the search been extended to cover specific
fields of administrative law, such as labour law, more cases would have been identified.
See Harry W. Arthurs, 'Who's Afraid of Globalization? The Transformation of Canadian
Labour Law' in John Craig & Michael Lynk, eds., Globalization and the Future of Labour
Law (Cambridge: Cambridge University Press, forthcoming 2005). Arguably,
globalization and neoliberalism have influenced other fields of law more explicitly. See,
e.g., David Schneiderman, 'Constitutional Approaches to Privatization: An Inquiry into
the Magnitude of Neo-Liberal Constitutionalism' (2000) 63 Law & Contemp.Prob. 83;
Robert Wai, 'Trans-national Liftoff and Juridical Touchdown: The Regulatory Function of
Private Law' (2002) 40 Colum.J.Transnat'l L. 209; Stevan Pepa, 'Extraterritoriality and
the Supreme Court's Assertion of the Economic Constitution' (2000) 34 Can.Bar Rev.
231.

[FN24]. However, several of these cases arise out of odd circumstances in which
neoliberalism features as a remote cause: e.g., prisoners seek judicial review of the
decision of penitentiary officials to charge them for telephone calls following
privatization of the provincial telephone system.

[FN25]. S.C. 1993, c. 44.

[FN26]. (1999). 170 D.L.R. (4th) 487, [1999] M.J. No. 49 (QL) (Man. C.A.), leave to
appeal to S.C.C. dismissed (without reasons) [1999] S.C.C.A. No. 152 (QL).

[FN27]. [1997] T.C.J. No. 320 (QL) (Tax Ct.).

[FN28]. John Shields & B. Mitchell Evans, Shrinking the State: Globalization and Public
Administration 'Reform' (Halifax: Fernwood Publishing, 1998) [Shrinking the State].

[FN29]. The term comes from Thomas Franck, One Market Under God: Extreme
Capitalism, Market Populism and the End of Economic Democracy (New York: Anchor
Books, 2001).

[FN30]. Michael Finus & Bianca Rundshagen, 'Toward a Positive Theory of Coalition
Formation and Endogenous Instrumental Choice in Global Pollution Control' (1998) 96
Pub.Choice 145.
[FN31]. See, e.g., Highway 407 Privatization Act, S.O. 1998, c. 28, amended S.O. 2001,
c. 23.

[FN32]. John Gandy & Lorna Hurl, 'Private Sector Involvement in Prison Industries:
Options and Issues' (1987) 29 Can.J.Criminol. 185; Patricia Hughes & Mary Jane
Mossman, 'Rethinking Access to Criminal Justice in Canada: A Critical Review of Needs
and Responses' (2002) 13 Windsor Rev.Legal & Soc.Issues 1.

[FN33]. See, e.g., Savings and Restructuring Act, S.O. 1996, c. 1, Schedule Q
(Amendments to various statutes with regard to Interest Arbitration); An Act to provide
for expeditious resolution of disputes during collective bargaining in certain sectors and
to facilitate collective bargaining following restructuring in the public sector and to make
certain amendments to the Employment Standards Act and the Pay Equity Act, S.O.
1997, c. 21 (Schedules A, B, and C); Harish C. Jain & S. Muthuchidambam, 'Ontario
Labour Law Reforms: A Comparative Study of Bill 40 and Bill 7' (1996) 4 C.L.E.L.J.
311.

[FN34]. According to the Canadian Auto Workers online newsletter, Line in the Sand, in
its first months in office, Ontario's neoliberal Harris government cut the Ministry of
Labour budget by 46 per cent, and made redundant fifty-two of 257 health and safety
inspectors (Line in the Sand 1:3, 20 October 1995), as well as four of seven ministry
doctors, seventeen of thirty-four engineers, ten of twenty hygienists, all thirteen air-
quality technicians, all six nurses, all five ergonomists, and two of three divers (Line in
the Sand 1:4, 25 October 1995); it also disbanded the Workers' Health and Safety Agency
(Line in the Sand 1:10, July 1996). See online: CAW, <http://
www.caw.ca/news/allCAWnewsletters/lineinthesand/>. Similar redundancies occurred in
other branches of the Labour Ministry. See also S. Ron Ellis, 'An Administrative System
in Jeopardy: Ontario's Appointments Process' (1998) 6 C.L.E.L.J. 53 ['System in
Jeopardy'].
[FN35]. Walkerton Commission of Inquiry, Walkerton Commission of Inquiry Reports,
ch. 10.4.2 at 376-80, online: Ontario Ministry of the Attorney General <http://
www.attorneygeneral.jus.gov.on.ca/english/about/pubs/walkerton/>.

[FN36]. See Harry W. Arthurs, 'Vox Populi: Populism, The Constitution and the
Legislative Process' in Tsvi Kahana, ed., Legislatures and Constitutionalism: The Role of
Legislatures in the Constitutional State (forthcoming). See also David Cameron &
Graham White, Cycling into Saigon: The Conservative Transition in Ontario (Vancouver:
UBC Press, 2000).

[FN37]. Evert Lindquist & Graham White, 'Streams, Springs and Stones: Ontario Public
Service Reform in the 1980s and the 1990s' (1994) 37 Can.Pub.Admin. 267.

[FN38]. For a pioneering exploration of the legal and constitutional dimensions of this
issue, see Lorne Sossin, 'Public Servants and Political Masters: In Search of a
Constitutional Doctrine of Bureaucratic Independence in Canada' (2005) 55 U.T.L.J. 427.

[FN39]. Willis, 'McRuer Report,' supra note 4.

[FN40]. For a partial history of the litigation, see Ellis, 'System in Jeopardy,' supra note
34; Kevin Burkett, 'The Politicization of the Ontario Labour Relations Framework in the
1990s' (1998) 6 C.L.E.L.J. 161; Judith McCormack, 'Comment on "The Politicization of
the Ontario Labour Relations Framework in the 1990s"' (1999) 7 C.L.E.L.J. 325. For a
more general, but equally pessimistic, assessment, see David Mullan & Antonella Ceddia,
'The Impact on Public Law of Privatization, Deregulation, Outsourcing, and Downsizing:
A Canadian Perspective' (2003) 10 Indiana J.Glob.Leg.Stud. 199 ['Impact'].

[FN41]. Auton (Guardian ad litem of) v. British Columbia (A.G.), 2004 SCC 78, [2004]
S.C.J. No. 71 (QL); Newfoundland (Treasury Board) v. Newfoundland and Labrador
Association of Public and Private Employees (N.A.P.E.), 2004 SCC 66, [2004] S.C.J. No.
61 (QL); but see Chaoulli c. Québec (Procureur général), [2002] J.Q. no 763 (QL)
(Q.C.A.), heard and reserved at S.C.C., June 7, 2004, [2002] C.S.C.R. no 280.

[FN42]. Singh v. Canada, [1985] 1 S.C.R. 177; R. v. Askov, [1990] 2 S.C.R. 1199, 59
C.C.C. (3d) 449; Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3
S.C.R 3, 2003 SCC 62.

[FN43]. In Vriend v. Alberta, [1998] 1 S.C.R. 493, 156 D.L.R. (4th) 385, the Court held
that Alberta's deliberate omission of 'sexual orientation' from the grounds protected under
its Individuals' Rights Protection Act, R.S.A. 1980, was an 'act' to which the Charter
applied. At para. 64, Cory J. found it unnecessary to decide whether the Charter might
impose affirmative duties such that a failure of the government to take positive action
would be open to Charter challenge. He noted that the possibility had not be ruled out,
citing obiter comments in four Supreme Court decisions.

[FN44]. Gosselin v. Québec (A.G.), [2002] 4 S.C.R. 429. See also Amber Elliot, 'Social
Assistance and the Charter: Is There a Right to Welfare in Canada?' (2001) 7 Appeal 74;
Bruce Porter, 'Judging Poverty: Using International Human Rights Law to Redefine the
Scope of Charter Rights' (2000) 15 J.L.& Social Pol'y 117.

[FN45]. See generally Mullan & Ceddia, 'Impact,' supra note 40.

[FN46]. For example, drivers' licences can be suspended for failing to pay tolls on a
privatized highway: see Highway 407 Privatization Act, supra note 31 at c. 23, s. 20(4)
(5). Private security guards have some of the rights of police officers: see Private
Investigators and Security Guards Act, R.S.O. 1990, c. P.25; Law Commission of Canada,
'In Search of Security: The Roles of Public Police and Private Agencies' (Ottawa: Law
Commission of Canada, April 2002), online: LCC
<http://www.lcc.gc.ca/en/themes/os/2002_04_15.htm>.
[FN47]. Jodi Freeman, 'The Contracting State' (2000) 28 Fla.State Univ.L.Rev. 155; Jodi
Freeman 'Extending Public Law Norms through Privatization' (2003) 116 Harv.L.Rev.
1285; Mullan & Ceddia, 'Impact,' supra note 40.

[FN48]. Gerald Frug, 'Administrative Democracy' (1990) 40 U.T.L.J. 559.

[FN49]. See, e.g., Slaight Communications v. Davidson, [1989] 1 S.C.R. 1038, 59 D.L.R.
(4th) 416; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929.

[FN50]. CUPE Local 963 v. New Brunswick Liquor Commission, [1979] 2 S.C.R. 227, 3
D.L.R. (3d) 417.

[FN51]. See David S. Cohen & Peter Finkle, 'Crown Liability in Canada: Developing
Compensation Policies for Regulatory Failure' (1994) 37 Can.Pub.Admin. 179; Lorne
Sossin, 'Public Fiduciary Obligations, Political Trusts, and the Equitable Duty of
Reasonableness in Administrative Law' (2003) 66 Sask.L.Rev. 129.

[FN52]. Ricardo Grinspun & Robert Kreklewich, 'Consolidating Neo-liberal Reforms:

Free Trade as a Conditioning Framework' (1994) 43 Stud.Pol.Econ. 33; Jarod Wiener,
'Globalization and Disciplinary Neoliberal Governance' (2001) 8 Constellations 461
['Globalization'].

[FN53]. For a guardedly optimistic discussion of regulatory competition in the Canadian

context, see Kathryn Harrison, 'Races to the Bottom? Provincial Interdependence in the
Canadian Federation' (Paper presented to the Annual Meeting of the Canadian Political
Science Association, June 2004), online: CPSA <www.cpsa-acsp.ca/papers-
2004/Harrison.pdf>. For other commentary on regulatory competition see Brian Langille,
'Canadian Labour Law Reform and Free Trade' (1991) 23 Ottawa L.Rev. 581. See also
Daphne A. Kenyon & John Kincaid, eds., Competition among States and Local
Governments (Washington, DC: Urban Institute Press, 1991); Jagdish N. Bhagwati &
Robert E. Hudec, eds., Fair Trade and Harmonization: Prerequisites for Free Trade?
(Cambridge: MIT Press, 1996).

[FN54]. Adeno Addis, 'The Thin State in Thick Globalism: Sovereignty in the
Information Age' (2004) 37 Vand.J.Transnat'l L. 1.

[FN55]. William Scheuerman, Liberal Democracy and the Social Acceleration of Time
(Baltimore: Johns Hopkins University Press, 2004) [Liberal Democracy].

[FN56]. Lance Compa, 'NAFTA's Labour Side Agreement Five Years On: Progress and
Prospects for the NAALC' (1999) 7 C.L.E.L.J. 1.

[FN57]. See Lynn R. Coleman & Thomas R. Graham, 'The Stars and Stripes Wherever:
The Impact of Unilateral U.S. Economic Sanctions on the International Petroleum
Industry' (1997) 35 Alta.L.Rev. 334; Christopher L. Doerksen, 'The Restatement of
Canada's Cuban (American) Problem' (1998) 61 Sask.L.Rev. 127; John Ellicott, 'Between
a Rock and a Hard Place: How Multinational Companies Address Conflicts between U.S.
Sanctions and Foreign Blocking Measures' (1998) 27 Stetson L.R. 1365; Brenda Swick-
Martin & Katherine Evans, 'Canadian Practitioners' Perspective on Sanctions and Trade
Controls' (1998) 27 Stetson L.R. 1385.

[FN58]. See, e.g., David Schneiderman, 'Investment Rules and the New
Constitutionalism' (2000) 25 Law & Soc.Inq. 757; Stephen Clarkson, 'Locked In?
Canada's External Constitution under Global Trace Governance' (2003) 33
Am.Rev.Can.Stud. 145; Jane Kelsey, 'Global Economic Policy-Making: A New
Constitutionalism?' (1999) 9 Otago L.Rev. 535.

[FN59]. Daniel Price, 'Chapter 11 -- Private Party vs. Government, Investor--State

Dispute Settlement: Frankenstein or Safety Valve?' (2000) 26 Can.--U.S.L.J. 107; James
McIlroy, 'Private Investment Claims against State and Provinces: The Impact of NAFTA
Chapter 11 on Sub-federal Government Agencies' (2001) 27 Can.--U.S.L.J. 323; David
Schneiderman, 'NAFTA's Takings Rule: American Constitutionalism Comes to Canada'
(1996) 46 U.T.L.J. 499.

[FN60]. General Agreement on Trade in Services, online: WTO <http://

www.wto.org/services/2-obdis.htm>; and see Robert Howse & Elisabeth Tuerk, 'The
WTO Negotiations on Services: The Regulatory State Up For Grabs' (2002) 9 Canada
Watch 3. Implementation of the GATS is now (in 2004) under negotiation.

[FN61]. See David Schneiderman, 'Banging Constitutional Bibles: Observing

Constitutional Culture in Transition' (2005) 55 U.T.L.J. 833.

[FN62]. My earlier description of the Bretton Woods agreements (see text surrounding
note 11 supra) is material here. They did not attempt to create a transnational form of
social democracy but, rather, sought to establish a context within which national regimes
could emerge in response to local political processes and in accordance with local
economic needs.

[FN63]. Studies have identified some 125 'independent and globally active, yet sectorally
limited, courts, quasi-courts and other forms of conflict-resolving bodies': Andreas
Fischer-Lescano & Gunther Teubner, 'Regime Collisions: The Vain Search for Legal
Unity in the Fragmentation of Global Law,' online: Instituto Brasiliense de Direito
Público <http://www.idp. org.br/pdf/regimecollisions.pdf>. See also Project on
International Courts and Tribunals <http://www.pict-pcti.org/>.

[FN64]. Milton Mueller, 'Technology and Institutional Innovation: Internet Domain

Names' (2000) 5 Int.J.Communications Law & Policy, online: <http://
www.ijclp.org/5_2000/ijclp_webdoc_1_5_2000.html>.

[FN65]. 'Comitology' involves communication, persuasion, and voluntary adjustment to

common goals within discursive networks comprising European Community and state
officials, experts, and social partners. See, e.g., Christian Joerges & Jurgen Never, 'From
Intergovernmental Bargaining to Deliberative Political Process: The Constitutionalization
of Comitology' (1997) 3 Eur.L.J. 273; Rhys Dogan, 'Comitology: Little Procedures with
Big Implications' (1997) 20 West Eur.Pol. 31.

[FN66]. For example, the WHO relies heavily on national institutions ('collaborating
centres') and non-governmental organizations to carry out activities in support of its
mandate. See WHO's Interaction with Civil Society and Nongovernmental Organizations
(Geneva: WHO, 2002), online: WHO <http://
www.who.int/civilsociety/documents/en/RevreportE.pdf>; WHO's Collaborating Centres,
online: WHO <http://whqlily.who.int/general_infos.asp>.

[FN67]. For example, UNICEF programs provide educational, health, and emergency
supplies in 158 countries: see UNICEF at a Glance (UNICEF, 2004), online: UNICEF
<http://www.unicef.org/publications/index_19020.html>. The UN World Food Program
provides food aid and logistics support to support economic and social development in
developing countries and to assist emergency and longer-term food needs of victims of
natural disasters and internally displaced peoples and refugees. See the World Food
Program's 2003 Annual Report, online: World Food Program
<http://www.wfp.org/index.asp?section=7_1>. It is noteworthy that the Web sites of both
organizations feature stories about donors, accept online donations, and emphasize the
great need for additional support.

[FN68]. See, e.g., Alfred Aman, Jr., 'Globalization, Democracy and the Need for a New
Administrative Law' (2003) 10 Indiana J.Glob.Leg.Stud. 125; Christian Joerges, Inger-
Johanna Sand, & Gunther Teubner, Transnational Governance and Constitutionalism
(Oxford: Hart Publishing, 2004).

[FN69]. Arthurs, Without the Law, supra note 1.

[FN70]. Harry W. Arthurs, 'Globalization of the Mind: Canadian Elites and the
Restructuring of Legal Fields' (1998) 12 Can.J.Law & Soc'y 219; see also Richard
Crockett, Thinking the Unthinkable: Think-Tanks and the Economic Counter-Revolution
1931-1983 (London: Fontana Press, 1995). For a recent example of this phenomenon in
operation, see External Advisory Committee on Smart Regulation, Smart Regulation: A
Regulatory Strategy for Canada (Executive Summary), online: Government of Canada,
External Advisory Committee on Smart Regulation <http://www.pco-bcp.gc.ca/smartreg-
regint/en/08/sum.html> [Smart Regulation].

[FN71]. See, e.g., Alisdair Roberts, 'Altered States: Public Sector Restructuring and
Governmental Capacity' in Richard Chaykowski, ed., Globalization and the Canadian
Economy: The Implication for Labour Markets, Society and the State (Kingston, ON:
School of Policy Studies, Queens University, 2001) 105.

[FN72]. David Osborne & Ted Gaebler, Reinventing Government (New York:
Plume/Penguin, 1993).

[FN73]. The literature on the 'new public management' in Canada, the United States, and
the United Kingdom includes Peter Aucoin, The New Public Management: Canada in
Comparative Perspective (Montreal: Institute for Research on Public Policy, 1995);
Mohamed Charih & Arthur Daniels, eds., New Public Management and Public
Administration in Canada (Toronto: Institute of Public Administration of Canada, 1997);
H. Wade MacLauchlan, 'Public Service Law and the New Public Management' in
Michael Taggart, ed., The Province of Administrative Law (Oxford: Hart Publishing,
1997) 118; O.P. Dwivedi & James I. Gow, From Bureaucracy to Public Management: The
Administrative Culture of the Government of Canada (Toronto: Broadview Press, 1999);
Jan-Erik Lane, New Public Management (London; New York : Routledge, 2000);
Michael Barzelay, The New Public Management: Improving Research And Policy
Dialogue (New York: Russell Sage Foundation, 2001); Kate McLaughlin, Stephan P.
Osborne, & Ewan Ferlie, eds., New Public Management: Current Trends and Future
Prospects (London: Routledge, 2002); Christopher Pollitt & Geert Bouckaert, Public
Management Reform: A Comparative Process, 2d ed. (Oxford: Oxford University Press,
2004). For more agnostic views see B. Guy Peters & Donald Savoie, 'Civil Service
Reform: Misdiagnosing the Patient' (1994) 54 Pub.Admin.Rev. 418; Donald Savoie,
'What Is Wrong with the New Public Management?' (1995) 38 Can.Pub.Admin. 112;
Charles Polidano, Martin Minogue, & David Hulme, eds., Beyond the New Public
Management: Changing Ideas and Practices in Governance (Cheltenham, UK: Edward
Elgar, 1998); Christopher Hood, The Art of the State: Culture, Rhetoric and Public
Management (Oxford: Oxford University Press/Clarendon, 1998).

[FN74]. A prestigious advisory committee of business executives, academics, lawyers,

and former public servants has recommended that Canada align its 'regulatory processes,
practices, results and/or decisions' with those of the United States whenever possible
unless 'important national priorities, unique Canadian circumstances or Constitutional
values require different approaches, or the government does not have sufficient
confidence that [they] will meet Canadian policy objectives.' Smart Regulation, supra
note 70.

[FN75]. See, e.g., Johan P. Olsen & B. Guy Peters, eds., Lessons from Experience:
Experiential Learning and Administrative Reforms in Eight Democracies (Oslo:
Scandinavian University Press, 1996); Oliver James & Nick Manning, 'Public
Management Reform: A Global Perspective' (1996) 16:3 Politics 143; Richard Allen,
"'New Public Management": Pitfalls for Central and Eastern Europe' (1999) 5:1
Pub.Man.Forum 1; Lawrence Jones, James Guthrie, & Peter Steane, eds., Learning from
International Public Management Reform (London: Elsevier-Oxford Press, 2000); David
Kettl, The Global Public Management Revolution: A Report on the Transformation of
Governance (Washington: Brookings Institution, 2000); Nick Manning, 'The Legacy of
New Public Management in Developing Countries' (2001) 67 Int.Rev.Admin.Sci. 297;
Dele Olowu, 'Introduction to New Public Management: An African Reform Paradigm?'
(2002) 27:3 African Development 1.

[FN76]. See generally B. Guy Peters & Donald Savoie, Governance in a Changing
Environment (Montreal: McGill-Queen's University Press, 1995).
[FN77]. On this constitutional paradigm, and its the effect on administrative law, see
David Dyzenhaus, Murray Hunt, & Michael Taggart, 'The Principle of Legality in
Administrative Law: Internationalisation as Constitutionalisation' (2001) 1
O.U.Commonwealth L.J. 5; David Dyzenhaus, 'Constituting the Rule of Law:
Fundamental Values in Administrative Law' (2002) 27 Queen's L.J. 445; H.W.
MacLauchlan, 'Transforming Administrative Law: The Didactic Role of the Supreme
Court of Canada' (2001) 80 Can.Bar Rev. 281; David J. Mullan, 'The Supreme Court of
Canada and Tribunals -- Deference to the Administrative Process: A Recent Phenomenon
or a Return to Basics?' (2001) 80 Can.Bar Rev. 399.

[FN78]. See, e.g., Damien Chalmers, 'Post-nationalism and the Quest for Constitutional
Substitutes' (2000) 27 J.Law & Soc'y 178; Jeffrey Jowell, 'The Rule of Law Today' in
Jeffrey Jowell & Dawn Oliver, eds., The Changing Constitution, 4th ed. (Oxford: Oxford
University Press, 2000) 3; Richard Stewart, U.S. Administrative Law: A Resource for
Global Administrative Law? (New York: Institute for International Law and Justice, New
York University School of Law, 2004), online: NYU <http://
www.law.nyu.edu/kingsburyb/spring04/globalization/stewart_012604.pdf>.

[FN79]. See Harry W. Arthurs & Brent Arnold, 'Does the Charter Matter?'
Rev.Const.Stud. [forthcoming in 2005].

[FN80]. For somewhat more sceptical views see Shields & Evans, Shrinking the State,
supra note 28; Wiener, 'Globalization,' supra note 52.

[FN81]. Eighty-eight per cent of Canadians believe that the Charter is a good thing for
the country, while only 4 per cent hold a contrary view. Moreover, support for the Charter
has grown over the years. Centre for Research and Information on Canada. 'The Charter:
Dividing or Uniting Canadians?' (9 January 2002), online: CRIC
<http://www.cric.ca/pdf/cahiers/cricpapers_ april2002.pdf> at 8. However, while this
support extends broadly across all regions of Canada, it may not be particularly deep: for
example, 56 per cent support greater police powers to fight crime even at the expense of
civil rights, while only 41 per cent are opposed. Ibid. at 2.

[FN82]. See, e.g., Frug, 'Administrative Democracy' supra note 48.

[FN83]. See, e.g., Albo et al., A Different Kind of State?, supra note 22; Joel Handler,
'The Politics of Structure: Decentralization and Empowerment' (1993) 13 Windsor
Yrbk.Acc.Jus. 239.

[FN84]. Robert Putnam, Bowling Alone: The Collapse and Revival of American
Community (New York: Simon & Schuster, 2001); Susan J. Pharr & Robert Putnam, eds.,
Disaffected Democracies: What's Wrong with the Trilateral Countries? (Princeton, NJ:
Princeton University Press, 2000).

[FN85]. For a review and critique of the literature on 'deliberative democracy' see
William Scheuerman, 'Democratic Experimentalism or Capitalist Synchronization?
Critical Reflections on Directly-Deliberative Polyarchy' (2004) 17 Can.J.L.& Juris. 101.

[FN86]. For an optimistic but fairly balanced Canadian overview see Donald Lenihan,
Rethinking Governance: From E-Government to E-Democracy (Ottawa: KTA Centre for
Collaborative Governance, 2002), online: KTA Centre <http:// kta.on.ca/ktacenter.html>.

[FN87]. See Roderick A. Macdonald, 'Call-Centre Government: For the Rule of Law,
Press #' (2005) 55 U.T.L.J. 449.

[FN88]. Scheuerman, Liberal Democracy, supra note 55.

[FN89]. See, e.g., Arthurs, Without the Law, supra note 1; Roderick A. Macdonald,
'Metaphors of Multiplicity: Civil Society, Regimes and Legal Pluralism' (1998) 15
Arizona J.Int.& Compar.Law 69.
[FN90]. See, e.g., Gunther Teubner, 'After Legal Instrumentalism? Strategic Models of
Post-Regulatory Law' in Gunther Tuebner, ed., Dilemmas of Law in the Regulatory State
(Berlin: Walter de Gruyter, 1986) 299; Gunther Teubner, 'Regulatory Law: Chronicle of a
Death Foretold' (1992) 1 Soc.& Leg.Stud. 451.

[FN91]. See, e.g., Robert Wolfe, 'Rendering unto Caesar: How Legal Pluralism and
Regime Theory Help in Understanding "Multiple Centres of Power"' in Gordon Smith &
Daniel Wolfish, eds., Who Is Afraid of the State? Canada in a World of Multiple Centres
of Power (Toronto: University of Toronto Press, 2001) 260; John Ruggie, Taking
Embedded Liberalism Global: The Corporate Connection (New York: Institute for
International Law and Justice, Working Paper No. ILLJ 2003/02, 2003).

[FN92]. See, e.g., Robert Boyer, The Regulation School: A Critical Introduction (New
York: Columbia University Press, 1990); Bob Jessop, 'Capitalism and Its Future:
Remarks on Regulation, Government and Governance' (1997) 4 Rev.Int'l.Pol.Econ. 561;
Martin Shapiro, 'Administrative Law Unbounded: Reflections on Government and
Governance,' (2000) 8 J.Glob.Leg.Stud. 369; Gregor Murray & Gilles Trudeau, eds.,
Equity, Efficiency, Ethics? The Social Regulation of the Global Firm (2004) 59 Relations
Industrielles / Industrial Relations [theme issue].

[FN93]. See, e.g., Alan Hunt, 'Foucault's Expulsion of Law' (1992) 17 Law & Soc.Inq. 1;
Gerry Stoker, 'Governance as Theory: Five Propositions' (1998) 50:4 Int'l.Soc.Sci.J. 17;
Nikolas Rose & Mariana Valverde, 'Governed by Law?' (1998) 7 Soc.& Leg.Stud. 541.
END OF DOCUMENT
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