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How Judge Posner Thinks
Some thoughts on a recent book about Richard Posner I have recently finished reading William Domnarski’s book on Richard Posner ― for reasons that will become apparent, I hesitate to describe it as a biography ― and want to share some thoughts on it. Be warned though: I am something of a Posner fanboy, and…
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The Real Problem of Judicial Arrogance
What judicial arrogance is, and is not Alice Woolley has published a much discussed post over at Slaw, describing and decrying what she regards as “the problem of judicial arrogance”, and also the way in which lawyers and, presumably, legal academics enable this arrogance. Having been quite critical of the ways in which judges regard and…
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A Judge Unbound
The Prime Minister has at last named his choice to fill the vacancy left on the Supreme Court by the retirement of Justice Thomas Cromwell. It is Justice Malcolm Rowe, now at the Newfoundland and Labrador Court of Appeal. For all the concern ― of the Prime Minister’s and his government’s own making ― about whether…
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Charitable Status and Freedom of Expression: Testing Labour Union Exceptionalism in the context of the Charter’s Fundamental Freedoms
The charitable organization Canada Without Poverty (“CWP”) has created some buzz lately with its constitutional challenge to a provision in the Income Tax Act that makes charitable tax status contingent on refraining from engaging in certain “political activities”. As a preliminary matter, there is always a risk in assessing laws impacting expression that our thinking…
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Oliphant on Challenge to Charities’ Political Spending Limits
Just a quick announcement: my friend, co-author, and occasional guest Benjamin Oliphant will have a post soon discussing the Charter challenge to the limits the Income Tax Act imposes on the amounts charitable organizations are able to spend on political advocacy (without losing their charitable status). I am looking forward to reading it!
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The Public Confidence Fairy
Public confidence in the courts cannot be the foundation of judicial independence Judicial independence is often justified, both in the decisions of the courts and in the broader public discourse, by the need to maintain public confidence in the administration of justice. It seems to me that this justification is not compelling. To borrow Paul…
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Why Do the Write Thing?
Sir Geoffrey Palmer and Andrew Butler, both of them former legal academics and current barristers, Sir Geoffrey having also served as Attorney-General and Prime Minister in between, are about to publish a book advocating that New Zealand enact a “written” constitution. They have also set up a Twitter account and a website to both promote the book and…
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Unconstitutional
Thoughts on the constitutionality of the new Supreme Court appointments process In my last post, I argued that the process for appointing Supreme Court judges announced by the federal government last week is not a positive development. It will neither increase the transparency of the appointments nor de-politicize them, while creating an illusion of having done…
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Smoke and Mirrors
The new process for appointing judges to the Supreme Court is nothing to be happy about Last week, the Prime Minister announced a new(-ish) appointments process for judges of the Supreme Court of Canada. The announcement was met with praise by many, and criticism by some. For my part, I am with the critics. Far from being a…
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Constraint and Candour
The case for a constrained judiciary ― but also candour about adjudication At the website of Advocates for the Rule of Law (ARL), Asher Honickman has posted a reply to my post here on “How to Do Constitutional Adjudication” (which was itself a reply to some of his arguments in a previous ARL essay making “The…
Double Aspect 