judges
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Friends Like These
In my comment on the Supreme Court’s decision striking down the Criminal Code’s provisions on prostitution, Canada (Attorney General) v. Bedford, 2013 SCC 72, I expressed concern about the Court’s reliance on “legislative facts” ― that is, the social context in which the impugned legislation operates ― to resolve the case, and especially its holding that a trial judge’s… Continue reading
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Off Course
In my post on Canada (Attorney General) v. Bedford, 2013 SCC 72, the Supreme Court’s recent decision striking down the prostitution-related provisions of the Criminal Code, I said I would have some thoughts on what this decision means for the future of Charter-based judicial review in Canada. As Churchill said, it is a dangerous thing to make predictions, especially… Continue reading
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No Boondoggle
In his otherwise sensible recent column about the appointment of Justice Nadon to the Supreme Court, the Globe’s Jeffrey Simpson describes the office of supernumerary judge (which Justice Nadon held prior to his appointment) “is one of the biggest boondoggles in the public sector.” This is quite wrong, silly even. Supernumerary judges are actually a… Continue reading
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Hercules and the Umpire
Readers may have already come across it, but I hadn’t until a few days ago, and in case others haven’t yet, I wanted to recommend a wonderful blog by Richard Kopf, an American federal district court judge, called Hercules and the Umpire. As judge Kopf explains, I hope the title evokes an image of two… Continue reading
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Something about the Zeitgeist
Justice Scalia is often snarky. But he gets as good as he gives. Both tendencies were recently on display, after Justice Scalia apparently asserted that judges interpreting law in accordance with the “spirit of the age” were among the causes of Nazi barbarities, including the Holocaust ― a none too subtle dig at “living constitutionalism”… Continue reading
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Scripta Volant Quoque
The Romans said ― or, more likely, wrote ― that while words fly away, writing remains. Russians say that what is written with the quill cannot be hacked away with an axe. The idea of the permanence of the written word is very widespread. It is part of the law, too, whether in the rules… Continue reading
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Says Who?
Exposing the secrets of the powerful is all the rage. And there are different ways of doing that, not all of them involving spending weeks in the transit zone of the Sheremetyevo Airport. As a fascinating recent paper shows, one of these more comfortable ways involves analyzing the language of judicial opinions in order to… Continue reading
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What They Said
It is usually understood that judges must give reasons for their decisions. But does it matter if the reasons a judge gives are largely lifted from the submissions of one of the parties? That was the question that the Supreme Court of Canada confronted in Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, delivered on… Continue reading
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The Ghost of Patriation
If the ghost of communism is, or ever was, haunting Europe, Canadian constitutional law is haunted by what Fabien Gélinas described as the Ghost of Patriation. This ghost has been seen abroad again this week, stirred by an historian’s claims that, while the Supreme Court was considering questions about the constitutionality of the federal government’s… Continue reading
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Judicial Independence as Free Speech
I wrote last fall about some implications of the metaphor of the “marketplace of ideas,” much used (especially in the United States) in the realm of free speech law. What prompted my reflection was a presentation by Robert Post, the Dean of Yale Law School, who argued that institutions engaged in the production of specialized… Continue reading
Double Aspect 