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Full-Text Articles in Law
Book Review: The Great Dissent: How Oliver Wendell Holmes Changed His Mind—And Changed The History Of Free Speech In America, By Thomas Healy, Jamie Cameron
Osgoode Hall Law Journal
This is a book review of Healy, Thomas. The Great Dissent: How Oliver Wendell Holmes Changed his Mind—and Changed the History of Free Speech in America. Metropolitan Books, Henry Holt and Co. 2013.
Dead Hands, Living Trees, Historic Compromises: The Senate Reform And Supreme Court Act References Bring The Originalism Debate To Canada, J. Gareth Morley
Dead Hands, Living Trees, Historic Compromises: The Senate Reform And Supreme Court Act References Bring The Originalism Debate To Canada, J. Gareth Morley
Osgoode Hall Law Journal
Recent American debates about the relationship between the historic political compromises underlying constitutional provisions and their contemporary judicial application have been largely ignored in Canada. The Supreme Court of Canada has only twice referred to originalism—and never positively. But in two 2014 decisions about how central institutions of government—the Senate and the Supreme Court of Canada itself—might be changed, the Court relied on the underlying historic political compromises to interpret the Constitution, rejecting arguments from the text or democratic principle. In this article, I consider how Canadian courts have looked to history in the past and in the 2014 decisions, …
Formal Versus Functional Method In Comparative Constitutional Law, Francesca Bignami
Formal Versus Functional Method In Comparative Constitutional Law, Francesca Bignami
Osgoode Hall Law Journal
In the field of comparative constitutional law, the dominant approach to concept formation and research design is formal. That is, comparative projects generally identify what counts as the supreme law that can be enforced against all other sources of law based on the “constitutional” label of the positive law (written constitutions and the jurisprudence of constitutional courts) and the law books. This formal method, however, has significant limitations when compared with the functional method used in the field of comparative law more generally speaking. After a brief exposition of the functional method, this article explores the advantages of the functional …