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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 …
From Principles To Rules: The Case For Statutory Rules Governing Aspects Of Judicial Disqualification, Jula Hughes, Philip Bryden
From Principles To Rules: The Case For Statutory Rules Governing Aspects Of Judicial Disqualification, Jula Hughes, Philip Bryden
Osgoode Hall Law Journal
The common law “reasonable apprehension of bias” test for judicial disqualification is highly fact- and context-specific. While there are good reasons for this approach as a general proposition, it also gives rise to considerable uncertainty for both judges and litigants in considering whether or not it is appropriate for a judge to sit in a marginal case. This article explores statutory judicial disqualification regimes in the United States, Germany, and Quebec to gain insights into how statutory rules can be employed to provide greater clarity to judges and litigants who are addressing situations that have the potential to give rise …