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Full-Text Articles in Law
No Amendment? No Problem: Judges, “Informal Amendment,” And The Evolution Of Constitutional Meaning In The Federal Democracies Of Australia, Canada, India, And The United States, John V. Orth, John Gava, Arvind P. Bhanu, Paul T. Babie
No Amendment? No Problem: Judges, “Informal Amendment,” And The Evolution Of Constitutional Meaning In The Federal Democracies Of Australia, Canada, India, And The United States, John V. Orth, John Gava, Arvind P. Bhanu, Paul T. Babie
Pepperdine Law Review
This article considers the way in which judges play a significant role in developing the meaning of a constitution through the exercise of interpretive choices that have the effect of “informally amending” the text. We demonstrate this by examining four written federal democratic constitutions: those of the United States, the first written federal democratic constitution; India, the federal constitution of the largest democracy on earth; and the constitutions of Canada and Australia, both federal and democratic, but emerging from the English unwritten tradition. We divide our consideration of these constitutions into two ideal types, identified by Bruce Ackerman: the “revolutionary” …
The Use Of American Precedents In Canadian Courts, Gerard V. La Forest
The Use Of American Precedents In Canadian Courts, Gerard V. La Forest
Maine Law Review
In 1849, the Supreme Court of New Brunswick faced the issue of whether there was a public right to float logs on navigable streams. Not surprisingly, no general right was found in the English common law as large scale floating of lumber down rivers did not exist in England. “Yet in a young country like Canada, the right to float logs and timber was an economic necessity in many areas and some device had to be found to make the activity legal.” To find that legal device, the New Brunswick court turned to the United States, specifically to Maine, and …
Justice As A Rounding Error?: Evidence Of Subconscious Bias In Second-Degree Murder Sentences In Canada, Craig E. Jones, Micah B. Rankin
Justice As A Rounding Error?: Evidence Of Subconscious Bias In Second-Degree Murder Sentences In Canada, Craig E. Jones, Micah B. Rankin
Osgoode Hall Law Journal
There are few areas of law that grant judges as much discretion as the sentencing of criminal offenders. This discretion necessarily leads to concerns about the influence of biases, including those that result from subconscious processes associated with human cognition; that is to say, heuristics. In this article, the authors explore one heuristic—number preference—through an examination of all reported second degree murder parole ineligibility decisions between 1990 and 2012. Number preference leads individuals to predictably round off measurements to certain favoured numbers. The authors identify a tendency for parole ineligibility decisions to cluster around even numbers and multiples of five, …
Refusal To Extradite: An Examination Of Canada's Indictment Of The American Legal System, Jami Leeson
Refusal To Extradite: An Examination Of Canada's Indictment Of The American Legal System, Jami Leeson
Georgia Journal of International & Comparative Law
No abstract provided.
The Forms And Limits Of Judicial Inquiry: Judges As Inquiry Commissioners In Canada And Australia, Grant R. Hoole
The Forms And Limits Of Judicial Inquiry: Judges As Inquiry Commissioners In Canada And Australia, Grant R. Hoole
Dalhousie Law Journal
In both Canada and Australia the conduct ofpublic inquiries draws heavily from the expertise of the legal profession, with judges frequently serving as commissioners and inquiry hearings often reproducing the popular imagery of a courtroom. Despite this affinity between public inquiries and the legal profession, however, jurisprudential and academic authorities repeatedly stress that public inquiries are non-adjudicative. Indeed, the received wisdom is that the investigative focus of public inquiries justifies their divergence from the procedural and substantive commitments of adjudication. This paper challenges that assumption. It argues that the service of judges as inquiry commissioners should be premised on their …
Taking A Dip In The Supreme Court Clerk Pool: Gender-Based Discrepancies In Clerk Selection, John J. Szmer, Erin B. Kaheny, Robert K. Christensen
Taking A Dip In The Supreme Court Clerk Pool: Gender-Based Discrepancies In Clerk Selection, John J. Szmer, Erin B. Kaheny, Robert K. Christensen
Marquette Law Review
Former U.S. Supreme Court clerks are heavily recruited by select law firms, and many eventually find their way to policy “elite” positions in the government or in the legal academy. A number of former clerks have returned to the Court as litigators, and a subset has returned to the Court as Justices. We are interested in clerk selection for two reasons. First, clerks influence key aspects of the judicial process while serving in their clerkship capacity, and second, many seem to be in a good position to influence legal policy well after their clerkships have ended. With this in mind, …
Who Writes? Gender And Judgment Assignment On The Supreme Court Of Canada, Peter Mccormick
Who Writes? Gender And Judgment Assignment On The Supreme Court Of Canada, Peter Mccormick
Osgoode Hall Law Journal
This article poses the question: Now that women are receiving an increasing share of the seats on the Supreme Court of Canada (the Court), can we conclude with confidence that they have been admitted to full participation, with a mix of judgments—including the more significant decisions—that is fully comparable to their male colleagues? The author looks at the assignment of reasons for judgment on the Court over the last three chief justiceships, with specific reference to the relative rate of assignments to male and female judges. He finds that the male/female gap is more robust than ever, although he also …
Refining The Reasonable Apprehension Of Bias Test: Providing Judges Better Tools For Addressing Judicial Disqualification, Jula Hughes, Dean Philip Bryden
Refining The Reasonable Apprehension Of Bias Test: Providing Judges Better Tools For Addressing Judicial Disqualification, Jula Hughes, Dean Philip Bryden
Dalhousie Law Journal
Despite a considerable amount of litigation concerning judicial impartiality, the Canadian "reasonable apprehension of bias" test for judicial disqualification has remained fundamentally unaltered and is well accepted in the jurisprudence. Unfortunately, the application of the test continues to generate difficulties for judges who need to use it to make decisions in marginal cases. Based on previously published doctrinal and empirical research, the goal in the present contribution is to suggest modifications to the test that will better explain the existing jurisprudence and make it easier for judges to understand when recusal is or is not necessary in marginal cases. The …
Evaluating Federally Appointed Judges In Canada: Analyzing The Controversy, Troy Riddell, Lori Hausegger, Matthew Hennigar
Evaluating Federally Appointed Judges In Canada: Analyzing The Controversy, Troy Riddell, Lori Hausegger, Matthew Hennigar
Osgoode Hall Law Journal
This commentary describes our experiences in trying to undertake a judicial performance evaluation of federally appointed judges in Canada. Some respondents were enthusiastic about the project, but others were strongly opposed to it and worried about the effects that our survey would have on judicial independence. After describing the feedback that we received and the fallout from our project, we examine the relationship between judicial performance evaluation and judicial independence. We argue that a well-conceived judicial performance evaluation does not violate judicial independence. We then explore the resistance to judicial performance evaluation in Canada, using a comparative lens. The explanation …
"Was It Something I Said?": Losing The Majority On The Modern Supreme Court Of Canada, 1984-2011, Peter J. Mccormick
"Was It Something I Said?": Losing The Majority On The Modern Supreme Court Of Canada, 1984-2011, Peter J. Mccormick
Osgoode Hall Law Journal
Appeal court judges do not just vote and run; they vote and then they explain, at length, why theirs is the most reasonable position. Since the core of explanation is persuasion, this means that between the initial conference vote and the final decision, some of the judges sometimes change their minds; and this in turn means that sometimes an initial majority becomes a minority and vice versa, something which often leaves clear footprints in the written record. This paper demonstrates that this happens more often than we might think—some 255 times for the last three Chief Justiceships, or roughly once …
Revising Canada's Ethical Rules For Judges Returning To Practice, Stephen Ga Pitel, Will Bortolin
Revising Canada's Ethical Rules For Judges Returning To Practice, Stephen Ga Pitel, Will Bortolin
Dalhousie Law Journal
It has recently become more common for retired Canadian judges to return to the practice of law This development raises an array of ethical considerations and potential threats to the integrity of the administration of justice. Although most codes of legal ethics contemplate the possibility of former judges returning to practice, the rules on this particular topic are dated, under-analyzed, and generally inadequate. This article reviews the Canadian ethical rules that specifically relate to former judges and identifies their shortcomings. In doing so, the authors consider, for comparative purposes, Canadian ethical rules directed at former public officers who return to …
American Citations And The Mclachlin Court: An Empirical Study, Peter Mccormick
American Citations And The Mclachlin Court: An Empirical Study, Peter Mccormick
Osgoode Hall Law Journal
This article examines the use of American jurisprudence by the judges of the McLachlin Court, using an earlier study of such citations as a reference point. In addition to tracking overall use of American citations over time, it looks at these trends: which Canadian judges use American cases and for which types of cases; and which American cases, courts, and judges are being cited. Brief descriptions of the Supreme Court cases with the largest use of American citations precede a categorization of the results. The article confirms previous academic findings that the use of American citations have been modest, with …
Policy Preference Change And Appointments To The Supreme Court Of Canada, Benjamin Alarie, Andrew Green
Policy Preference Change And Appointments To The Supreme Court Of Canada, Benjamin Alarie, Andrew Green
Osgoode Hall Law Journal
Canadian prime ministers appoint judges to the Supreme Court of Canada at their own discretion. This practice has been criticized as providing prime ministers with the ability to appoint judges whose policy preferences are regarded as politically congenial. We examine the Court's judgments in the post-Charter era to discern the apparent policy preferences of the judges. Our results suggest that the policy preferences of judges are not strongly associated with the political party of the prime minister and that their policy preferences shift over time in seemingly unpredictable ways. We discuss the implications of this analysis for possible reforms of …
A New Era In The Selection Of Supreme Court Judges?, Jacob Ziegel
A New Era In The Selection Of Supreme Court Judges?, Jacob Ziegel
Osgoode Hall Law Journal
No abstract provided.
Parliamentary Scrutiny Of Supreme Court Nominees: A View From The United Kingdom, Kate Malleson
Parliamentary Scrutiny Of Supreme Court Nominees: A View From The United Kingdom, Kate Malleson
Osgoode Hall Law Journal
No abstract provided.
Research Note: All But One: Solo Dissents On The Modern Supreme Court Of Canada, Christine M. Joseph
Research Note: All But One: Solo Dissents On The Modern Supreme Court Of Canada, Christine M. Joseph
Osgoode Hall Law Journal
It can be argued that the exercise of solo dissent on the Supreme Court of Canada is judicial disagreement at its apex-a single judge sitting on the highest court in the nation breaking away from his or her colleagues who have purportedly "gotten it wrong." By examining the practice of solo dissent in the Supreme Court of Canada over the last three decades, this research note provides insight into this unique form of judicial disagreement. Through construction of a typology of solo dissents, and by providing answers to important questions, such as how often judges render solo dissents and whether …
Appointment Of Justice Marshall Rothstein To The Supreme Court Of Canada, Peter W. Hogg
Appointment Of Justice Marshall Rothstein To The Supreme Court Of Canada, Peter W. Hogg
Osgoode Hall Law Journal
Peter Hogg, a constitutional law scholar, was retained by the Commissioner for Federal Judicial Affairs to provide advice to the Ad Hoc Committee to Review a Nominee for the Supreme Court of Canada as to its procedures. His account of the public hearing provides an insider's viewpoint of the historic process undertaken for the appointment of Justice Rothstein. His opening remarks to the committee, appended to this commentary, set out the parameters of questioning for the hearing, but raise additional questions with regard to the appropriate limits of judicial speech.
The Serendipitous Solution To The Problem Of Supreme Court Appointments, Peter Mccormick
The Serendipitous Solution To The Problem Of Supreme Court Appointments, Peter Mccormick
Osgoode Hall Law Journal
No abstract provided.
Civil Disobedience And The Law: The Role Of Legal Professionals, James Macpherson
Civil Disobedience And The Law: The Role Of Legal Professionals, James Macpherson
Osgoode Hall Law Journal
Discusses the role of judges when cases of civil disobedience are brought before the court.
The Dissenting Opinion: Voice Of The Future?, Claire L'Heureux-Dube
The Dissenting Opinion: Voice Of The Future?, Claire L'Heureux-Dube
Osgoode Hall Law Journal
Madame Justice L'Heureux-Dubé explores the history and the role of dissenting opinions in Canadian law. She argues that dissents contribute to the development of the law through their prophetic potential. Dissents are also fundamental elements of judicial discourse, serving to safeguard the integrity of the decisionmaking process and judicial independence. The Canadian legal tradition, like its American counterpart, provides numerous examples of why, in 1951, future Chief Justice Bora Laskin praised the "precious right" to dissent. Unanimity is not indispensable for judicial legitimacy or legal stability. In fact, the presence of judicious dissents can portray the true complexity of legal …
R. V. R.D.S.: A Political Science Perspective, Jennifer Smith
R. V. R.D.S.: A Political Science Perspective, Jennifer Smith
Dalhousie Law Journal
Political scientists, including those who study Canadian government and politics, regard the judiciary as a component of the system of governance as a whole. They view it as an institution in relation to other institutions. Thus in The Judiciary in Canada: The Third Branch of Government, Peter Russell examines such issues as the structure of the judiciary in the federal system, the separation of powers and judicial independence, and the appointment, promotion and removal of judges.' As well, political scientists follow the development of the law itself, in areas of peculiar relevance to political life, like electoral law, or of …
Judges In The Executive Council Of Upper Canada, William Renwick Riddell
Judges In The Executive Council Of Upper Canada, William Renwick Riddell
Michigan Law Review
When in December, 1791, Upper Canada began her separate provincial career, her first Lieutenant-Governor, Colonel John Graves Simcoe, said that the Constitution of the Province was "the very image and transcript of that of Great Britain."'