precedent
-
Nothing Doing
A brief rebuttal to responses to my last post on inappropriate criticism of the US Supreme Court’s abortion decision Continue reading
-
Putting Stare Decisis Together Again
Originalists and living constitutionalists alike have good Rule of Law reasons for being wary of appeals to reinvigorate stare decisis Continue reading
-
Which Principles? What Politicization?
A response to Maxime St-Hilaire’s appeal to principle over politics at the Supreme Court of Canada Continue reading
-
How To Do Constitutional Adjudication
Some thoughts on Asher Honickman’s take on the judicial role As I mentioned in my previous post, I would like to respond to a number of points that Asher Honickman makes in a very interesting ― albeit, in my view, misguided ― essay written for CBA Alberta’s Law Matters and published at the website of Continue reading
-
Expecting Too Much?
I have recently responded here, in some detail, to Andrew Coyne’s article claiming, in essence, that some of the Supreme Court’s recent decisions were not mere wrong, but altogether unreasonable, and therefore “activist.” Over the Policy Options blog, I briefly take on Gordon’s Gibson’s attack on the Supreme Court’s alleged activism, which I think is Continue reading
-
Constitutional Job Placement
In a post on Concurring Opinions, Gerard Magliocca asks an interesting question about what importance, if any, should attach to the fact that a constitutional provision invoked in a case has never been applied by the courts, or has not been applied in a very long time. It is, arguably, a specific instance of the broader Continue reading
-
Precedent and Democracy
“Long-standing” precedent is generally regarded as more authoritative than one of recent vintage. But there is reason to question that assumption, too. The more ancient a rule, the more likely it is that the reasons that made it sensible or good (whatever one’s criteria for the goodness of legal rules!) at the time it crystallized Continue reading
-
Nothing Like It
Law, perhaps even more than man, is a creature of habit. It thrives on the humdrum. It likes nothing better than demonstrations that one case is just like some other in all relevant respects. It is a creature of habit in a more literal sense too, in that legal rules often crystallize out of the Continue reading
Double Aspect 