Remedial Discretion Research Articles

Amicus Brief in Horne v. Flores: On Behalf of Mountain States Legal Foundation

In order to maintain the balance of power established in the federal system, the Framers intended that the federal courts’ authority would be limited. Congress was mindful of this principle of federalism when it drafted the Equal Education Opportunity Act (“EEOA”), which gives effect to the Equal Protection Clause of the Fourteenth Amendment in state-run schools. In order to protect the federal structure, Congress limited federal courts’ remedial discretion under the EEOA. The Supreme Court has also been mindful of the principles of federalism and has protected the authority of states to regulate their schools, while at the same time ensuring compliance with federal law. The Ninth Circuit did violence to the principles of federalism that the Supreme Court has fought to protect and that Congress was mindful of when it drafted the EEOA. By affirming the district court’s order requiring Arizona to earmark funding for English Language Learner programs, regardless of the effectiveness of increased funding on meeting the requirements of the EEOA, the Ninth Circuit entangled the federal courts in a dispute that they had no expertise in resolving and disrupted the careful balance of power between the states and the federal government.

Principled Remedial Discretion Under the Charter

Principled Remedial Discretion Under the Charter

'Vacation' at Sea: Judicial Remedies and Equitable Discretion in Administrative Law

Scholars have rarely examined the remedial issues that federal courts may face when they find that an administrative agency has acted unlawfully. This article presents a broad survey of that topic in the course of exploring a narrower doctrinal issue: the validity of without That term denotes a practice whereby a court remands an agency action for further work but allows the action to remain in place during the remand proceedings. In recent years many appellate panels have resorted to this practice in order to minimize disruption of an ongoing administrative program or to protect private reliance interests. Some argue that this very untraditional form of relief is prohibited by section 706 of the Administrative Procedure Act, which provides that a reviewing court shall . . . set aside an agency action that violates one of the review standards codified therein. This article contends, however, that section 706 should not be read literally, but rather in light of a longstanding canon of statutory construction that disfavors interpretations that would displace the equitable remedial discretion of the federal courts. The article traces the history of that discretion in the administrative law context and examines its numerous manifestations in modern case law. The tradition of remedial discretion is not without limits, however. Several recent cases, in which the Supreme Court has evinced a preference for bright-line rules over equitable balancing, suggest that at least some Justices would have doubts about remand without vacation. Indeed, a peek at some of the Court's internal working papers confirms the existence of such doubts. Moreover, this remedial device is subject to practical objections - most notably, that it might unduly relax pressure on agencies to do their work carefully the first time around, and discourage private citizens from initiating court actions to challenge agency orders. Nevertheless, this article defends remand without vacation as a legitimate exercise of discretion. The practice entails relatively simple judgments, not drastically different from determinations that courts have often made in the past. Moreover, the practical worries about the device have not been borne out by experience to date. Accordingly, the article advocates continued but cautious use of remand without vacation. Relying in part on guidelines endorsed by the American Bar Association, the article concludes by suggesting standards to guide the courts' exercise of discretion in this area.

Constitutional Remedies as "Constitutional Hints": A Comment on R. V. Schachter

Recent Canadian Charter of Rights and Freedoms cases including R. v. Schachter, A.G. Nova Scotia v. Phillips, R. v. Hebb and R. v. Morgentaler in which courts have made controversial remedial choices are examined. The authors argue that the choice of whether to extend or nullify an unconstitutionally underinclusive statute cannot be deduced either from the conclusion that the statute is underinclusive or from provisions such as sections 24(1) and 26 of the Charter and 52(1) of the Constitution Act, 1982. In difficult remedial cases, courts must exercise remedial discretion. Three current approaches include: courts always striking out underinclusive legislation, courts ordering the remedy the legislature would have wanted and courts ordering the least disruptive remedy. The authors reject the first approach because it erroneously dictates invalidation as the only remedial choice when that conclusion cannot be defended on textual, functional or procedural grounds. They reject the latter two approaches because they force courts to speculate on matters best left to legislatures. The authors suggest that any satisfactory approach to the exercise of remedial discretion should attempt to avoid regressive outcomes and not to supplant the political process. One such approach, they argue, is to have courts look to the values and purposes that they see in the Constitution for about how to exercise remedial discretion. Parts of the Constitution that protect the disadvantaged, such as s.15 of the Charter, are important sources for progressive constitutional hints. The constitutional hints approach allows the courts to defend one remedial choice over another as preferred, but not necessarily required, by their interpretation of the Constitution. In turn, legislatures may opt not to take the hint and move to amend the court's remedy.

Non-destructive Charter Responses to Legislative Inequalities

S. 24 of the Charter bestows wide remedial discretion on the courts in the adjudication of Charter claims. Professor Gibson argues that this discretion must not be employed in a manner destructive of existing rights because s. 26 requires the preservation of such rights. He explains how non-destructive methods of Charter enforcement fall into two categories: interpretative and remedial. Non-destructive remedies would include mechanisms such as: selective striking out, utilizing s. 52(1), the imposing of a trust condition on a statutory beneficiary, reducing disruptive judicial intervention into the legislative domain through a positive 'reading in' of sufficient context to allow compliance with the Charter, the temporary application of s. 1 to justify a Charter violation until there is a reasonable opportunity to remedy the defect, conceivably the use of an order for the amendment of legislation violating the Charter, and finally, the employment of declaratory judgments to exert political pressure on the government to bring its legislation into compliance with the Charter.