Comments on: 900 Days, 15 ‘Roos, No dice http://jaycurrie.info-syn.com/900-days-15-roos-no-dice/ One Damn Thing Leads to Another Wed, 07 Jan 2009 18:32:41 +0000 http://wordpress.org/?v=2.5 By: Ron Good http://jaycurrie.info-syn.com/900-days-15-roos-no-dice/#comment-53538 Ron Good Sun, 24 Aug 2008 02:05:42 +0000 http://jaycurrie.info-syn.com/?p=1397#comment-53538 truewest: I gather you may not want to continue with this discussion, which is OK with me, but that last post of mine was to note that, in response your last post on this thread, Dicey may also have a point if one's understanding of administrative tribunals comes from deeper things than "<em>over-exposure to talk radio and intellectually dishonest blo(g)viators like Ezra Levant.</em>" In other words, such an understanding might also come from studying problems with the administrative/legislative method of deriving and applying law. And as far as: "<em>they [administrative tribunals] do a job that the courts are unwilling and unable to do, and do it far more efficiently (and often, with greater expertise) than courts could</em> "...I could say *that* about a skilled axe-murderer. Skill and efficiency are a separate subject than whether or not the job ought to be done--and done by such agencies--in the first place. It's possible there are very good reasons the courts are both unwilling and unable to do the job. truewest: I gather you may not want to continue with this discussion, which is OK with me, but that last post of mine was to note that, in response your last post on this thread, Dicey may also have a point if one’s understanding of administrative tribunals comes from deeper things than “over-exposure to talk radio and intellectually dishonest blo(g)viators like Ezra Levant.” In other words, such an understanding might also come from studying problems with the administrative/legislative method of deriving and applying law.

And as far as: “they [administrative tribunals] do a job that the courts are unwilling and unable to do, and do it far more efficiently (and often, with greater expertise) than courts could “...I could say that about a skilled axe-murderer.

Skill and efficiency are a separate subject than whether or not the job ought to be done—and done by such agencies—in the first place. It’s possible there are very good reasons the courts are both unwilling and unable to do the job.

]]> By: Ron Good http://jaycurrie.info-syn.com/900-days-15-roos-no-dice/#comment-53208 Ron Good Thu, 21 Aug 2008 21:26:10 +0000 http://jaycurrie.info-syn.com/?p=1397#comment-53208 truewest: I’ve described what I mean before, in post #9 and post #12. I read up on Dicey, and though I make my arguments from a less lofty perspective (I hardly have Dicey’s experience or legal education) we come to some similar conclusions I gather. I had put it like this in post #12: “<em>legislatures have usurped the adjudication of various disputes to bodies that have more immediately socially palatable biases in the concerned areas than the courts, and are, for bad measure, far more willing than courts to trade expediency for thoughtful, albeit slower, consideration. In other words, I find that the usual justification for tribunals and such is that statists of any description find them more efficient in achieving and enforcing interventionist/collectivist ends</em>“. In post #35 I noted that “Commissions, tribunals and such are normally a result of legislative actions” and I gave specific examples in post #9 where the legislatures had created such bodies specifically to enable what I see as an end run around Common Law restraints. I generally agree with Jay when he says “<em>the entire idea of delegating authority to quasi-judicial bodies which make up their rules as they go along is a 20th century invention which we might well do better without</em>“. The Charles I example I gave, though, shows that the trend Jay notes started well before the 20th century. And thank you for your suggestion; I have no trouble accepting and using the terminology that you suggest from here on if it makes my point clearer, although the terminology I used above was accepted by my prof (admittedly an English prof, not a law prof) when I wrote a paper on the…maybe conflict is the right term…differing qualities and results between and based on the differing derivations of law. I do remember that I used, among others, Bruno Leoni (citing sections of Leoni’s “Freedom and The Law”) as references in the paper and I remember also that Leoni used the term “legislative law” specifically. Leoni was Professor of Legal Theory and the Theory of the State at the University of Pavia, Italy. This quote I found (net surfing) from Leoni puts it nicely: “<em>Substituting legislation for the spontaneous application of nonlegislated rules of behaviour is indefensible <b>unless it is proved that the latter are uncertain or insufficient or that they generate some evil that legislation could avoid while maintaining the advantages of the previous system</b><b>. This preliminary assessment is simply unthought of by contemporary legislators. On the contrary, they seem to think that legislation is always good in itself and that the burden of the proof is upon the people who do not agree. … These people pretend to champion democracy. But we ought always to remember that whenever majority rule is unnecessarily substituted for individual choice, democracy is in conflict with individual freedom. It is this particular kind of democracy that ought to be kept to a minimum in order to preserve a maximum of democracy compatible with individual freedom. … … legislation, especially if applied to the innumerable choices that individuals make in their daily life, appears to be something absolutely exceptional and even contrary to the rest of what takes place in human society. The most striking contrast between legislation and other processes of human activity emerges whenever we compare the former with the proceedings of science. I would even say that this is one of the greatest paradoxes of contemporary civilization: it has developed scientific methods to such an astonishing degree while at the same time extending, adding, and fostering such antithetic procedures as those of decision groups and majority rule.</b></em>” [emphasis mine] I do not think that the Tribunal cases we are discussing are the result of any proof that that “<em>the [non-legislated rules] are uncertain or insufficient or that they generate some evil that legislation could avoid while maintaining the advantages of the previous system.</em>“ truewest: I’ve described what I mean before, in post #9 and post #12. I read up on Dicey, and though I make my arguments from a less lofty perspective (I hardly have Dicey’s experience or legal education) we come to some similar conclusions I gather.

I had put it like this in post #12:

“legislatures have usurped the adjudication of various disputes to bodies that have more immediately socially palatable biases in the concerned areas than the courts, and are, for bad measure, far more willing than courts to trade expediency for thoughtful, albeit slower, consideration.

In other words, I find that the usual justification for tribunals and such is that statists of any description find them more efficient in achieving and enforcing interventionist/collectivist ends“.

In post #35 I noted that “Commissions, tribunals and such are normally a result of legislative actions” and I gave specific examples in post #9 where the legislatures had created such bodies specifically to enable what I see as an end run around Common Law restraints.

I generally agree with Jay when he says “the entire idea of delegating authority to quasi-judicial bodies which make up their rules as they go along is a 20th century invention which we might well do better without“. The Charles I example I gave, though, shows that the trend Jay notes started well before the 20th century.

And thank you for your suggestion; I have no trouble accepting and using the terminology that you suggest from here on if it makes my point clearer, although the terminology I used above was accepted by my prof (admittedly an English prof, not a law prof) when I wrote a paper on the…maybe conflict is the right term…differing qualities and results between and based on the differing derivations of law.

I do remember that I used, among others, Bruno Leoni (citing sections of Leoni’s “Freedom and The Law”) as references in the paper and I remember also that Leoni used the term “legislative law” specifically. Leoni was Professor of Legal Theory and the Theory of the State at the University of Pavia, Italy.

This quote I found (net surfing) from Leoni puts it nicely:

“Substituting legislation for the spontaneous application of nonlegislated rules of behaviour is indefensible unless it is proved that the latter are uncertain or insufficient or that they generate some evil that legislation could avoid while maintaining the advantages of the previous system. This preliminary assessment is simply unthought of by contemporary legislators. On the contrary, they seem to think that legislation is always good in itself and that the burden of the proof is upon the people who do not agree. …

These people pretend to champion democracy. But we ought always to remember that whenever majority rule is unnecessarily substituted for individual choice, democracy is in conflict with individual freedom. It is this particular kind of democracy that ought to be kept to a minimum in order to preserve a maximum of democracy compatible with individual freedom. …

… legislation, especially if applied to the innumerable choices that individuals make in their daily life, appears to be something absolutely exceptional and even contrary to the rest of what takes place in human society. The most striking contrast between legislation and other processes of human activity emerges whenever we compare the former with the proceedings of science. I would even say that this is one of the greatest paradoxes of contemporary civilization: it has developed scientific methods to such an astonishing degree while at the same time extending, adding, and fostering such antithetic procedures as those of decision groups and majority rule.” [emphasis mine]

I do not think that the Tribunal cases we are discussing are the result of any proof that that “the [non-legislated rules] are uncertain or insufficient or that they generate some evil that legislation could avoid while maintaining the advantages of the previous system.“

]]> By: truewest http://jaycurrie.info-syn.com/900-days-15-roos-no-dice/#comment-53152 truewest Thu, 21 Aug 2008 14:45:02 +0000 http://jaycurrie.info-syn.com/?p=1397#comment-53152 Jay, Dicey may have a point if your understanding of administrative tribunals is formed by over-exposure to talk radio and intellectually dishonest blo(g)viators like Ezra Levant. Those who practice in front of such tribunals would take a different view, understanding that: a) tribunals don't make up their own rules as they go along, but in fact are guided by precedent and established rules, just as court are; b) they do a job that the courts are unwilling and unable to do, and do it far more efficiently (and often, with greater expertise) than courts could; and c) that at the end of the day, the ordinary courts (to borrow Dicey's phrase) get the final say on matters of law and procedural fairness. Of course, it's so much easier to resort to invective than to consider how the system actually works. Jay,
Dicey may have a point if your understanding of administrative tribunals is formed by over-exposure to talk radio and intellectually dishonest blo(g)viators like Ezra Levant. Those who practice in front of such tribunals would take a different view, understanding that:
a) tribunals don’t make up their own rules as they go along, but in fact are guided by precedent and established rules, just as court are;
b) they do a job that the courts are unwilling and unable to do, and do it far more efficiently (and often, with greater expertise) than courts could; and
c) that at the end of the day, the ordinary courts (to borrow Dicey’s phrase) get the final say on matters of law and procedural fairness.

Of course, it’s so much easier to resort to invective than to consider how the system actually works.

]]> By: Ron Good http://jaycurrie.info-syn.com/900-days-15-roos-no-dice/#comment-53111 Ron Good Thu, 21 Aug 2008 08:27:05 +0000 http://jaycurrie.info-syn.com/?p=1397#comment-53111 This quote I found (net surfing) from Leoni puts it nicely: "<em>Substituting legislation for the spontaneous application of nonlegislated rules of behaviour is indefensible <b>unless it is proved that the latter are uncertain or insufficient or that they generate some evil that legislation could avoid while maintaining the advantages of the previous system</b>. This preliminary assessment is simply unthought of by contemporary legislators. On the contrary, they seem to think that legislation is always good in itself and that the burden of the proof is upon the people who do not agree. ... These people pretend to champion democracy. But we ought always to remember that whenever majority rule is unnecessarily substituted for individual choice, democracy is in conflict with individual freedom. It is this particular kind of democracy that ought to be kept to a minimum in order to preserve a maximum of democracy compatible with individual freedom. ... ... legislation, especially if applied to the innumerable choices that individuals make in their daily life, appears to be something absolutely exceptional and even contrary to the rest of what takes place in human society. The most striking contrast between legislation and other processes of human activity emerges whenever we compare the former with the proceedings of science. I would even say that this is one of the greatest paradoxes of contemporary civilization: it has developed scientific methods to such an astonishing degree while at the same time extending, adding, and fostering such antithetic procedures as those of decision groups and majority rule.</em>" [emphasis mine] I do not think that the Tribunal cases we are discussing are the result of any proof that that "<em>the [non-legislated rules] are uncertain or insufficient or that they generate some evil that legislation could avoid while maintaining the advantages of the previous system.</em>" This quote I found (net surfing) from Leoni puts it nicely:

“Substituting legislation for the spontaneous application of nonlegislated rules of behaviour is indefensible unless it is proved that the latter are uncertain or insufficient or that they generate some evil that legislation could avoid while maintaining the advantages of the previous system. This preliminary assessment is simply unthought of by contemporary legislators. On the contrary, they seem to think that legislation is always good in itself and that the burden of the proof is upon the people who do not agree. ...

These people pretend to champion democracy. But we ought always to remember that whenever majority rule is unnecessarily substituted for individual choice, democracy is in conflict with individual freedom. It is this particular kind of democracy that ought to be kept to a minimum in order to preserve a maximum of democracy compatible with individual freedom. ...

... legislation, especially if applied to the innumerable choices that individuals make in their daily life, appears to be something absolutely exceptional and even contrary to the rest of what takes place in human society. The most striking contrast between legislation and other processes of human activity emerges whenever we compare the former with the proceedings of science. I would even say that this is one of the greatest paradoxes of contemporary civilization: it has developed scientific methods to such an astonishing degree while at the same time extending, adding, and fostering such antithetic procedures as those of decision groups and majority rule.” [emphasis mine]

I do not think that the Tribunal cases we are discussing are the result of any proof that that “the [non-legislated rules] are uncertain or insufficient or that they generate some evil that legislation could avoid while maintaining the advantages of the previous system.”

]]> By: Ron Good http://jaycurrie.info-syn.com/900-days-15-roos-no-dice/#comment-53108 Ron Good Thu, 21 Aug 2008 07:58:46 +0000 http://jaycurrie.info-syn.com/?p=1397#comment-53108 truewest: I've described what I mean before, in post #9 and post #12. I read up on Dicey, and though I make my arguments from a less lofty perspective (I hardly have Dicey's experience or legal education) we come to some similar conclusions I gather. I had put it like this in post #12: “<em>legislatures have usurped the adjudication of various disputes to bodies that have more immediately socially palatable biases in the concerned areas than the courts, and are, for bad measure, far more willing than courts to trade expediency for thoughtful, albeit slower, consideration. In other words, I find that the usual justification for tribunals and such is that statists of any description find them more efficient in achieving and enforcing interventionist/collectivist ends</em>". In post #35 I noted that "<em>Commissions, tribunals and such are normally a result of legislative actions</em>" and I gave specific examples in post #9 where the legislatures had created such bodies specifically to enable what I see as an end run around Common Law restraints. I generally agree with Jay when he says "<em>the entire idea of delegating authority to quasi-judicial bodies which make up their rules as they go along is a 20th century invention which we might well do better without</em>". The Charles I example I gave, though, shows that the trend Jay notes started well before the 20th century. And thank you for your suggestion; I have no trouble accepting and using the terminology that you suggest from here on if it makes my point clearer, although the terminology I used above was accepted by my prof (admittedly an English prof, not a law prof) when I wrote a paper on the...maybe conflict is the right term...differing qualities and results between and based on the differing derivations of law. I do remember that I used, among others, both Alan Dershowitz and especially Bruno Leoni (citing sections of Leoni's "Freedom and The Law") as references in the paper and I remember also that Leoni used the term "legislative law" specifically. Leoni was Professor of Legal Theory and the Theory of the State at the University of Pavia, Italy. truewest: I’ve described what I mean before, in post #9 and post #12. I read up on Dicey, and though I make my arguments from a less lofty perspective (I hardly have Dicey’s experience or legal education) we come to some similar conclusions I gather.

I had put it like this in post #12:

“legislatures have usurped the adjudication of various disputes to bodies that have more immediately socially palatable biases in the concerned areas than the courts, and are, for bad measure, far more willing than courts to trade expediency for thoughtful, albeit slower, consideration.

In other words, I find that the usual justification for tribunals and such is that statists of any description find them more efficient in achieving and enforcing interventionist/collectivist ends“.

In post #35 I noted that “Commissions, tribunals and such are normally a result of legislative actions” and I gave specific examples in post #9 where the legislatures had created such bodies specifically to enable what I see as an end run around Common Law restraints.

I generally agree with Jay when he says “the entire idea of delegating authority to quasi-judicial bodies which make up their rules as they go along is a 20th century invention which we might well do better without“. The Charles I example I gave, though, shows that the trend Jay notes started well before the 20th century.

And thank you for your suggestion; I have no trouble accepting and using the terminology that you suggest from here on if it makes my point clearer, although the terminology I used above was accepted by my prof (admittedly an English prof, not a law prof) when I wrote a paper on the…maybe conflict is the right term…differing qualities and results between and based on the differing derivations of law.

I do remember that I used, among others, both Alan Dershowitz and especially Bruno Leoni (citing sections of Leoni’s “Freedom and The Law”) as references in the paper and I remember also that Leoni used the term “legislative law” specifically. Leoni was Professor of Legal Theory and the Theory of the State at the University of Pavia, Italy.

]]> By: jay http://jaycurrie.info-syn.com/900-days-15-roos-no-dice/#comment-53099 jay Thu, 21 Aug 2008 06:18:08 +0000 http://jaycurrie.info-syn.com/?p=1397#comment-53099 And, based on the performance of the 'Roos (not to mention such things as the CRTC) Dicey had a point. Not one which makes admin layers very happy today but the entire idea of delegating authority to quasi-judicial bodies which make up their rules as they go along is a 20th century invention which we might well do better without. And, based on the performance of the ‘Roos (not to mention such things as the CRTC) Dicey had a point. Not one which makes admin layers very happy today but the entire idea of delegating authority to quasi-judicial bodies which make up their rules as they go along is a 20th century invention which we might well do better without.

]]> By: truewest http://jaycurrie.info-syn.com/900-days-15-roos-no-dice/#comment-53061 truewest Thu, 21 Aug 2008 01:37:00 +0000 http://jaycurrie.info-syn.com/?p=1397#comment-53061 I take from "legislative law" you mean "adminstrative law", unless of course you oppose legislative action generally. If the former, you might describe youself as a Diceyan, after the British constitutional scholar A.V. Dicey who frowned on the rise of administrative tribunals. I take from “legislative law” you mean “adminstrative law”, unless of course you oppose legislative action generally. If the former, you might describe youself as a Diceyan, after the British constitutional scholar A.V. Dicey who frowned on the rise of administrative tribunals.

]]> By: Ron Good http://jaycurrie.info-syn.com/900-days-15-roos-no-dice/#comment-53038 Ron Good Wed, 20 Aug 2008 22:28:38 +0000 http://jaycurrie.info-syn.com/?p=1397#comment-53038 Truewest: Did this from me, earlier in this thread, <em>I am very conservative politically (more accurately I’m closer to anarcho-capitalist or classical liberal)–but not at all typically conservative individually. Most small-c conservatives and certainly most Big-C types(for example, the religious right) would find my general ethical thinking quite unacceptable.</em> confuse you? Sincerely, and without a hint of sarcasm, I'm sorry if it did. My position is that I generally support the Common/Judicial Law tradition much more than the legislative law tradition. Commissions, tribunals and such are normally a result of legislative actions. Truewest: Did this from me, earlier in this thread, I am very conservative politically (more accurately I’m closer to anarcho-capitalist or classical liberal)–but not at all typically conservative individually. Most small-c conservatives and certainly most Big-C types(for example, the religious right) would find my general ethical thinking quite unacceptable. confuse you?

Sincerely, and without a hint of sarcasm, I’m sorry if it did.

My position is that I generally support the Common/Judicial Law tradition much more than the legislative law tradition. Commissions, tribunals and such are normally a result of legislative actions.

]]> By: Ron Good http://jaycurrie.info-syn.com/900-days-15-roos-no-dice/#comment-52985 Ron Good Wed, 20 Aug 2008 15:30:52 +0000 http://jaycurrie.info-syn.com/?p=1397#comment-52985 Me? A conservative?!?!?!?!? Heh. Check my blog, truewest. I ain't no conservative :-) More later. Me? A conservative???

Heh. Check my blog, truewest. I ain’t no conservative :-)

More later.

]]> By: truewest http://jaycurrie.info-syn.com/900-days-15-roos-no-dice/#comment-52756 truewest Tue, 19 Aug 2008 02:19:33 +0000 http://jaycurrie.info-syn.com/?p=1397#comment-52756 Ron, An appellate court, armed with a transcript and years of experience with witnesses, won't make findings of crediblity. But you, with "some experience with both tribunals and courts" are quite happy to weigh in on the "difference between testimony and truth" in a case you understand solely on the basis of the tribunal's decision and some self-serving web posts from the unsuccessful respondent? Please. The presumption of innocence, upon which you purport to rely, has nothing to do with findings of credibility. And despite your babbling about "corroboration", all the objective factors in this battle of credibility favour Ms. Dodd. Unlike Boissoin or Lund, she has no particular interest in the outcome; indeed, it might be said that it's not in her interest to testify against Boissoin. To suggest as you do that her testimony requires "corroboration" is unsupported in law and, frankly, idiotic. Meanwhile, Boissoin desparately attempts to both discredit Dodd(she's "troubled") and put words in her mouth ("she was talking about me", not the ag basher). Pathetic. (That said, the limits the tribunal placed on his speech are overbroad and will likely be cut back on appeal.) Boissoin had the opportunity to bring up everything he mentions in his post at the hearing. He was represented by counsel -- Gerry Chipeur QC, the evangelicals' go-to lawyer -- while the complainant was not. Either he didn't raise them or he did and wasn't believed. And as far as I know, he hasn't appealed the finding - only the remedy. As for the authority of tribunal, I don't give a rat's ass whether you believe the tribunal should have authority over you. so far, you haven't said anything persuade me that it shouldn't. And, as we both know, the law is on my side. Aren't you conservatives supposed to be big champions of the rule of law ? Or does that support depend on whose ox is being gored? Ron,
An appellate court, armed with a transcript and years of experience with witnesses, won’t make findings of crediblity. But you, with “some experience with both tribunals and courts” are quite happy to weigh in on the “difference between testimony and truth” in a case you understand solely on the basis of the tribunal’s decision and some self-serving web posts from the unsuccessful respondent? Please.
The presumption of innocence, upon which you purport to rely, has nothing to do with findings of credibility. And despite your babbling about “corroboration”, all the objective factors in this battle of credibility favour Ms. Dodd. Unlike Boissoin or Lund, she has no particular interest in the outcome; indeed, it might be said that it’s not in her interest to testify against Boissoin. To suggest as you do that her testimony requires “corroboration” is unsupported in law and, frankly, idiotic.
Meanwhile, Boissoin desparately attempts to both discredit Dodd(she’s “troubled”) and put words in her mouth (“she was talking about me”, not the ag basher). Pathetic. (That said, the limits the tribunal placed on his speech are overbroad and will likely be cut back on appeal.)
Boissoin had the opportunity to bring up everything he mentions in his post at the hearing. He was represented by counsel—Gerry Chipeur QC, the evangelicals’ go-to lawyer—while the complainant was not. Either he didn’t raise them or he did and wasn’t believed. And as far as I know, he hasn’t appealed the finding – only the remedy.
As for the authority of tribunal, I don’t give a rat’s ass whether you believe the tribunal should have authority over you. so far, you haven’t said anything persuade me that it shouldn’t. And, as we both know, the law is on my side. Aren’t you conservatives supposed to be big champions of the rule of law ? Or does that support depend on whose ox is being gored?

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