statutory interpretation
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Constitutional Law Ruins Everything. A (sort of) response to Mancini’s “Neutrality in Legal Interpretation.”
This post is by Andrew Bernstein. No! I am not an academic nor was meant to be.Am a mere practitioner, one that will doTo settle a dispute, argue an appeal or twoWhen advising clients, the law’s my tool.Deferential, if it helps me sway the courtArgumentative, and (aspirationally) meticulous.Case-building is my professional sportTrying my hand at Continue reading
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Guest Post: Andrew Bernstein
We continue our week of guest posts. This time, we will be posting a contribution from Andrew Bernstein (Tory’s), in response to my post last week on the ideal of neutrality in legal interpretation. Continue reading
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Neutrality in Legal Interpretation
Nowadays, it is unfashionable to say that legal rules, particularly rules of interpretation, should be “neutral.” Quite the opposite: now it is more fashionable to say that results in cases depend on the “politics” of a court on a particular day. Against this modern trend, not so long ago, it was Herbert Wechsler in his Continue reading
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Linguistic Nihilism
One common line of attack against textualism—the idea that “the words of a governing text are of paramount concern, and what they convey, in their context, is what the text means (Scalia & Garner, at 56)—is that language is never clear, or put differently, hopelessly vague or ambiguous. Put this way, the task of interpretation Continue reading
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Just Hook It to My Veins
Judge Amy Coney Barrett’s excellent lecture on statutory and constitutional interpretation Continue reading
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On Canadian Statutory Interpretation and Recent Trends
I have had the pleasure of reading (for the first time front-to-back) the legal interpretation classic, Reading Law by Justice Scalia and Bryan Garner. For Canadian courts struggling with how to source and use purpose when interpreting statutes, Reading Law provides valuable assistance. It does so by outlining two schools of thought on how to Continue reading
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Entertainment Assoc, 2020 FCA 100: A New Canadian Textualism
In Entertainment Software Assoc v Society of Composers, 2020 FCA 100, Stratas JA (for the Court) made a number of interesting comments about statutory interpretation in the administrative state and the role of international law in the interpretive activity. In this post, I review these comments, and agree with them wholeheartedly. This case is an Continue reading
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Chevron on 2
The illogic of the Supreme Court of Canada’s approach to deference to administrative interpretations of law Continue reading
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Not Good Enough
The Supreme Court re-writes the law of judicial review in Canada, but not nearly well enough. Continue reading
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Rafilovich: A Textualist (or Quasi-Textualist) Turn?
Since Telus v Wellman, the Supreme Court of Canada has moved towards a sort of “textually constrained” purposivism in statutory interpretation cases. To my mind, textually constrained purposivism involves two parts: (1) a focus on the text over abstract purposes in determining the meaning of text and (2) if there are conflicting purposes at the Continue reading
Double Aspect 