Polycentricity and queue jumping in public law remedies: A two-track response

This article examines complex public law remedies in light of Lon Fuller’s famous critique that courts are ill-equipped to deal with polycentric or multifaceted issues and the related critique that remedies for health care and other socio-economic rights result in queue jumping. Most contemporary commentators interpret Fuller as hostile to courts’ ordering complex remedies. A more nuanced interpretation of Fuller advanced in part ii of this article suggests that polycentricity is a matter of degree and that courts can cautiously engage with polycentric issues by relying on negotiation among parties and drawing dialogically on the expertise of the legislature and the executive. At the same time, many commentators subsequent to Fuller have unwisely dismissed his concern about maintaining the integrity of adjudication by ensuring that successful litigants receive a tangible remedy. Part iii will examine the American experience with complex remedies, suggesting that a recent California prison case illustrates some dangers of courts losing adjudicative focus when they take on too many polycentric problems. Part iv will suggest that, while Doucet-Boudreau and section 24(1) of the Charter should allow Canadian courts carefully to manage polycentric tasks by retaining jurisdiction, there have been some regrettable retreats from the majority’s decision. Nevertheless, a new remedy of a ‘declaration plus’ will be defended as appropriate in prison and other complex cases. Part v will examine remedies in the polycentric context of health care. It will suggest that suspended declarations of invalidity such as was used in Chaoulli can also help manage polycentricity. The two-track approach to remedies defended in the part vi would involve courts where possible, providing individual remedies to litigants while using more cautious dialogic remedies to address complex polycentric issues such as unconstitutional health care and prison conditions.

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