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Articles 1 - 9 of 9

Full-Text Articles in Law

The Supreme Court Of Canada: Policy-Maker Of The Year, Benjamin Perrin Nov 2014

The Supreme Court Of Canada: Policy-Maker Of The Year, Benjamin Perrin

Faculty Publications

Each year, the Macdonald-Laurier Institute for Public Policy recognizes a “Policy-Maker of the Year”. Past recipients have included former Bank of Canada Governor Mark Carney and Foreign Minister John Baird, who have had a tremendous impact on our country’s economic stability and international stature, respectively. One could argue that, while people in such positions are undoubtedly influential, there is another entity that is rarely acknowledged for its influence on policy, but in the last year has changed Canadian public policy in wide-reaching and long-lasting ways – the Supreme Court of Canada (SCC). This paper examines the Court’s 10 most ...


The Trouble With Amicus Facts, Allison Orr Larsen Nov 2014

The Trouble With Amicus Facts, Allison Orr Larsen

Faculty Publications

The number of amicus curiae briefs filed at the Supreme Court is at an all-time high. Most observers, and even some of the Justices, believe that the best of these briefs are filed to supplement the Court’s understanding of facts. Supreme Court decisions quite often turn on generalized facts about the way the world works (Do violent video games harm children? Is a partial birth abortion ever medically necessary?). To answer these questions, the Justices are hungry for more information than the parties and the record can provide. The consensus is that amicus briefs helpfully add factual expertise to ...


Following Lower-Court Precedent, Aaron-Andrew P. Bruhl Jul 2014

Following Lower-Court Precedent, Aaron-Andrew P. Bruhl

Faculty Publications

This Article examines the role of lower-court precedent in the US Supreme Court’s decisions. The Supreme Court is rarely the first court to consider a legal question, and therefore the Court has the opportunity to be informed by and perhaps even persuaded by the views of the various lower courts that have previously addressed the issue. This Article considers whether the Court should give weight to lower-court precedent as a matter of normative theory and whether the Court in fact does so as a matter of practice. To answer the normative question, this Article analyzes a variety of potential ...


Against Methodological Stare Decisis, Evan J. Criddle, Glen Staszewski Jun 2014

Against Methodological Stare Decisis, Evan J. Criddle, Glen Staszewski

Faculty Publications

Should federal courts give stare decisis effect to statutory interpretation methodology? Although a growing number of legal scholars have answered this question in the affirmative, this Essay makes the case against methodological stare decisis. Drawing on recent empirical studies of Congress’s expectations regarding statutory interpretation, we show that existing knowledge of Congress’s expectations is insufficient to settle on one consistent approach to statutory interpretation. Moreover, Congress has almost certainly changed its expectations over time, and this raises serious problems for methodological stare decisis from the perspective of faithful-agency theories. We argue further that many theories and doctrines of ...


Against Methodological Stare Decisis, Evan J. Criddle, Glen Staszewski Jan 2014

Against Methodological Stare Decisis, Evan J. Criddle, Glen Staszewski

Faculty Publications

Should federal courts give stare decisis effect to statutory interpretation methodology? Although a growing number of legal scholars have answered this question in the affirmative, this Essay makes the case against methodological stare decisis. Drawing on recent empirical studies of Congress’s expectations regarding statutory interpretation, we show that existing knowledge of Congress’s expectations is insufficient to settle on one consistent approach to statutory interpretation. Moreover, Congress has almost certainly changed its expectations over time, and this raises serious problems for methodological stare decisis from the perspective of faithful-agency theories. We argue further that many theories and doctrines of ...


Measuring Circuit Splits: A Cautionary Note, Aaron-Andrew P. Bruhl Jan 2014

Measuring Circuit Splits: A Cautionary Note, Aaron-Andrew P. Bruhl

Faculty Publications

A number of researchers have recently published new measures of the Supreme Court’s behavior in resolving conflicts in the lower courts. These new measures represent an improvement over prior, cruder approaches, but it turns out that measuring the Court’s resolutions of conflicts is surprisingly difficult. The aim of this methodological comment is to describe those difficulties and to establish several conclusions that follow from them. First, the new measures of the Court’s behavior are certainly imprecise and may reflect biased samples. Second, using the Supreme Court Database, which some studies rely on to assemble a dataset of ...


The Punishment Agenda In The Courts, Debra Parkes Jan 2014

The Punishment Agenda In The Courts, Debra Parkes

Faculty Publications

This paper critically examines the potential of prisoner litigation in Canada to shed light on what U.S. Supreme Court Justice Anthony Kennedy has called “the hidden world of punishment.” It considers whether prisoner’s rights litigation can act as a meaningful legal check on the growing punishment agenda in Canada. The paper begins with a brief description of some aspects of the punishment agenda before moving on to consider case law under the section of the Canadian Charter of Rights and Freedoms which speaks directly to punishment and its limits, the section 12 right to be free from “cruel ...


The U.S. Supreme Court Fellows Program; The Opportunity Of A Lifetime, S. I. Strong Jan 2014

The U.S. Supreme Court Fellows Program; The Opportunity Of A Lifetime, S. I. Strong

Faculty Publications

One reason why the Supreme Court Fellowship is one of the best-kept secrets in Washington, D.C., is its size. Unlike the White House Fellows program, which invites 12 people to join its ranks each year, and the Congressional Fellows program, which has over 30 participants annually, the Supreme Court accepts only four extremely talented individuals into its Fellows program each year. Every fall, these fortunate few begin a 12-month journey that offers them an unparalleled opportunity to observe and participate in the work of the federal judiciary at the highest levels.


Recognition And Enforcement Of Foreign Judgments In U.S. Courts: Problems And Possibilities, S. I. Strong Jan 2014

Recognition And Enforcement Of Foreign Judgments In U.S. Courts: Problems And Possibilities, S. I. Strong

Faculty Publications

The United States is currently facing a period of intense interest in transnational litigation. Not only has the U.S. Supreme Court become increasingly active in this field, but the American Law Institute (ALI) is also in the process of revising and drafting a number of Restatements concerning international law. The United States also recently signed The Hague Convention on Choice of Court Agreements (COCA), although the instrument has not yet been ratified.

The United States can and should reconsider U.S. law concerning the recognition and enforcement of foreign judgments immediately and unilaterally. Although this may appear to be ...