My nominations for this year’s Clawbies, and some other recommendations

December in the Southern hemisphere means that summer, not winter, is around the corner, and while the Santa Parade and Christmas trees are all there, they mostly provoke cognitive dissonance in those of us used to their being accompanied by snow (or grumblings about the lack thereof). That, and also concerns about Santa and his reindeer suffering a heatstroke. (On the plus side, I suppose there is no danger of getting burned in a chimney.) One holiday tradition that is not so weather-bound (though it will still be upended ― by the time difference that is; by the time the results come it, it will very much be 2017 in New Zealand) is that of the Clawbies ― the Canadian legal blogosphere’s yearly dose of self-congratulation.

We are about half-way through the nomination period, and some people, to whom I am very grateful, have been kind enough to put a word in for Double Aspect. It’s time for me to make my own suggestions. To be clear, by nominating some blogs and not others, I am not suggesting that these blogs are in some objective, absolute way “better” than others. What I am saying is that I like them, and think they deserve attention from readers and recognition from the Clawbies’ judges. Plenty of others do too, but the Clawbies’ rules say we are limited to three nominations, but the truth of the matter is that picking only three is pretty much mission impossible. So I will also bend the rules a bit, and make a few recommendations ― blogs I do not formally (and in some case am not permitted to) nominate, but which I still think should get considered for (and indeed win) some Clawbie or other.

Indeed, I will start with a recommendation, because it is for a blog that I could, and perhaps should, have nominated: Paul Daly’s Administrative Law Matters, last year’s big winner. Having nominated his blog repeatedly, I hope prof. Daly will forgive me for taking a break this time. I am pretty sure I will be nominating him again very soon, and indeed he would be a richly deserving winner again this time.

So for my actual nominations:

  1. The Université de Sherbrooke’s Law Faculty blog, À qui de droit: I mentioned it last year as a possible future nominee, and here it is. Sherbrooke’s response to Calgary’s ABlawg and the University of Alberta Faculty of Law Blog doesn’t (yet) have the former’s Clawbies-winning pedigree or the latter’s record of placing its contributors on the Supreme Court, but it is the best such collective effort east of the 110th meridian.
  2. Édith Guilhermont’s Juris Blogging: last year, I described Dr. Guilhermont’s as “the tireless apostle of legal blogging in Québec (although, ironically, not yet a blogger herself ― nudge nudge!)”; now, fortunately, the main part of this description is even more true, while the parenthetical no longer is. Juris Blogging is, so far as I know, the only blog devoted to law blogs in Canada. This may seem insular, but if Dr. Guilhermont is right that, for an increasing number of lawyers, blogs will be a supplement to, and even a substitute for, traditional legal scholarship, then she will be describing an increasingly important component of the legal culture and practice.
  3. Lisa Silver’s Ideablawg: Prof. Silver’s probing reflections on difficult issues in the criminal law are a must read for anyone interested in the subject. To my lasting regret, I didn’t care one bit for criminal law as a student, and avoided classes in it except for the compulsory one; Ideablawg helps me make up for the resulting ignorance, and I am grateful to its author for this! Thrice a Clawbie runner-up, it’s time Ideablawg were a winner already.

And here’s another recommendation, for a blog that I cannot nominate because I occasionally contribute to it (which reminds me that I’m overdue on my next installment): that of the CBA’s National Magazine. Its variety of subjects, contributors, and perspectives is pretty unique in the Canadian blawgosphere.

Finally, I thought I’d mention a couple of bloggers from my new home, New Zealand, which has more to teach Canadians about matters constitutional than we tend to suspect. One is Edward Willis, whose blog offers some very thoughtful takes on constitutional law and theory; the other is Andrew Geddis, whose posts on Pundit are always interesting, and will often highlight to Canadian readers the remarkable similarity of the issues faced in our two countries.

St-Hilaire on Parliamentary Privilege

I have been completely snowed under, despite the coming Southern hemisphere summer ― or perhaps because of it, since coming summer means end of the semester, and end of the semester means exams to grade (or to mark, as we say around here). 243 exam papers (or scripts, in Kiwi), to be precise, in my Constitutional Law class (or paper). This is very nearly done, and I hope to resume blogging by the end of the week. In the meantime, my friend, and occasional guest here, Maxime St-Hilaire, will entertain us with a post on parliamentary privilege, cross-posted from the Université de Sherbrooke’s blog, À qui de droit. I am looking forward to it!

The Chief Justice and the Law

The CBA National Magazine’s blog has just published a blog post of mine that comments on the speech which Chief Justice McLachlin gave at the “Supreme Courts and the Common Law” symposium held at the Université de Montréal’s Faculty of Law last week. I argue that the Chief Justice misunderstands the history of the common law, and that this misunderstanding results in her believing that courts need no longer be constrained by precedent, doctrine, and perhaps even statutory and constitutional text in their quest for “truth and justice.” This leads me to ask:

Does the Chief Justice believe in (the common) law? All law means constraint, first and foremost for government officials ― judges among them. Constraining officials, as well as having rules announced in advance for citizens to follow, provides predictability. If judges do not regard themselves as bound by the law, the Rule of Law’s promise of limited government and certainty is an empty one.

The Chief Justice’s speech was, I confess, quite shocking to me. While I have never found warnings of judicial autocracy especially compelling, it illustrates the fact that all persons who exercise power, including judicial power, are liable to get caught up in the belief in their own importance to the world, and to dismiss any constraints on their world-saving actions as inimical to the greater good. When the Chief Justice retires within the next couple of years, I will not be sorry to see her go.

A Fourth Cheer

My thanks to my readers on the blog’s fourth birthday

Yesterday, this blog turned four. Its fourth year has, I am afraid, been marked by occasional periods of extended silence, as was trying to finish my dissertation. Still, I have managed to come back every time, and to keep going. I have also got some very flattering accolades from the judges of the Clawbies and from an actual judge of the Federal Court of Appeal. Benjamin Oliphant and I have also produced a couple of papers which originated, in part, in some blog posts of mine, including this one from this past year (and in part in one of his).

As on previous blogging anniversaries, I take this opportunity to thank all of you, my readers, for giving me some of your time, and also for bearing with me when I go quiescent, to borrow again Judge Richard Kopf’s wonderful expression. I wish I could promise that I will be more regular in my postings, but my life might be a bit too chaotic for that for next little while. (I hope there will be good news amid the chaos, but everything in its time.) Please keep coming back, and I will at least try not to disappoint you.

Let Them Vote

I have a new post up at the CBA National Magazine’s blog, arguing that, with one significant qualification, a private member’s bill that would lower the voting age at federal elections to 16 is a good idea and should be enacted. I have already made the case for lowering the voting age, to 16 if not lower still, here and here. So I am happy to see that an MP, Don Davies, has taken up this cause ― and I hope that the government endorses it too, which would make the passage of the bill much more likely.

The one reservation I have about Mr. Davies’ bill as it now stands is that it makes no separate provision for, and indeed no mention of, a minimum age for running for Parliament. As I explain in the National Magazine post, under the Canada Elections Act, almost all eligible voters are allowed to be candidates. But it is not obvious that the minimum age for being an MP and for voting should be the same. At the very least, I think the issue deserves to be debated.

Subject to that, I wish Mr. Davies’ good luck with his bill. Its enactment would make our democracy more inclusive, and thus better.

Three Wishes

What I would like for 2016

What I would like for 2016

I haven’t met a friendly genie or wizard, alas ― and anyway, if I did, I’d ask for an unlimited supply of wishes. I’ll still make three wishes for the new year, and hope that they come true. Here’s what I would like…

… for the country:

A government that cares about the constitution, and not only when that is convenient. There are good intentions in that regard, as Emmett Macfarlane’s review of the new Justice Minister’s mandate letter demonstrates. But, as I have suggested, some of the government’s plans in the realm of democratic reform may raise serious constitutional issues. More importantly, this year is when the new government’s intentions, good or otherwise, will have to start taking shape and meeting the constraints of political reality. Wrapping yourself in the Charter is easy. Actually accepting that there are constitutional limits on your power, including of course on your ability to do (what you think is) good ― not so much.

… for the Canadian legal blogosphere:

A blog by a retired judge, following the example set on the other side of the pond by Sir Henry Brooke. As the Clawbies team once again reminded us when it attributed the 2015 Canadian Law Blogging Awards, our blawgging universe is ever expanding, and full of bright stars. It is, however, missing one, admittedly somewhat exotic, type of object ― a blog by judge. An active judge venturing into the blogosphere is perhaps too much to ask for; the risk of trouble might be too high, though I am not entirely sure about that. And, as Adam Dodek has pointed out, even retired judges who “trade on their ‘judge status'” to talk about controversial issues risk undermining the perception of the judiciary’s independence and separation from (partisan) politics. But Sir Henry’s blog demonstrates brilliantly that a retired judge can be interesting, entertaining even, without being controversial, and share his considerable experience with an online audience without compromising the judiciary’s image and standing. It would, I think, be great if a Canadian judge wondering what to do with in his or her present or impending retirement decided to follow Sir Henry’s example.

… for myself (and for Double Aspect):

A job that allows me to keep blogging! I haven’t discussed my own situation much since I have taken up blogging, and do not intend to inflict it on you in the future. However, I thought I might be allowed a momentary derogation from this principle. As my doctoral studies come to a close this year, I’ll need to find something else to do ― ideally, something that will not require me to quit blogging. I have had no luck on this front so far, so if you happen to have such a job on offer, or to know of one, I would love to hear from you.

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You may have noticed that I have changed the blog’s appearance to some extent. I hope that this has improved readability. If you have strong opinions ― good or bad ― about this, please let me know.

See You in 2016

With the announcement of the Clawbies’ 2015 winners, the blogging year is at an end. Paul Daly’s Administrative Law Matters is the overdue and most worthy winner of the Fodden Award for the Best Canadian Law Blog. And Double Aspect is a runner-up for the Fodden (which it won last year, to my continuing amazement). It’s a great honour, especially considering the quality of the “competition.” (I don’t know if any of us bloggers think of each other as competitors. I doubt it.)

There are many other great blogs among the winners and runners-up, so have a look at them. I want to note, especially, the National Magazine’s Blog’s win in the “Legal News” category ― since I’m a (somewhat irregular but proud) contributor to it. And, on a somewhat self-congratulatory note, I also note that not only the winner, but also all of the runners-up for the Fodden are academic (or, in my case, wannabe-academic) blogs. The next time people start questioning the value of academia, or scholarship more broadly, to the real world, keep this little data point in mind.

With this, I sign off for this year. Even if your celebrations, like mine, are appropriately a tad less glamorous than prof. Daly’s,  I hope they are joyful and bring you together with good company. See you in 2016, dear readers!