Your search
Results 264 resources
-
Partisan self-dealing in the design of election laws is a central challenge for democratic governance. This article develops a new conceptual framework, which I call a structural rights approach, that would enable the Supreme Court of Canada to respond effectively to this problem. A structural rights approach uses the language and logic of individual rights to regulate the structure of democratic institutions. In particular, I argue that courts should design democratic rights to remedy the structural deficiencies of the political system. To this end, I claim that the Supreme Court should interpret the right to vote as encompassing a new democratic right – the right to a fair and legitimate democratic process. In addition, I argue that the right to a fair and legitimate democratic process is best understood as a ‘structural right.’ I define ‘structural rights’ as individual rights that take into account the broader institutional framework within which rights are defined, held, and exercised. This article focuses on two cases studies – electoral redistricting and campaign finance – to show how the Court could use the right to a fair and legitimate democratic process to remedy the problem of partisan self-dealing. In addition, this article canvasses a wide array of structural approaches in the Canadian and American law of democracy literatures, and it locates the structural rights approach within this body of scholarship. The article also considers the structural rights approach with reference to theories of dialogue and deference. The structural rights approach not only provides a new paradigm for the Supreme Court’s oversight of the democratic process; it also offers an alternative way to conceptualize democratic rights.
-
Disciplinary sanctions against prisoners like any other decision taken by prison authorities are administrative decisions. That qualification had up to recently the effect of withdrawing those decisions from the supervisory jurisdiction of superior courts. Under such circumstances, the prisoner was the subject of an in-house justice guided by reasons of administrative commodity rather than by the respect of his rights, because he had indeed no right.
-
Prisons present a special context for the interpretation of constitutional rights, where prisoner complaints are pitched against the justifications of prison administrators. In the United States, the history of prisoner rights can be told as a story of the ebb and flow of judicial willingness to defer to the expertise-infused claims of prison administrators. Deference is ostensibly justified by a judicial worry that prison administrators possess specialized knowledge and navigate unique risks, beyond the purview of courts. In recent years, expansive judicial deference in the face of “correctional expertise” has eroded the scope and viability of prisoners’ rights, serving to restore elements of the historical category of “civil death” to the legal conception of the American prisoner. In Canada too, courts have often articulated standards of extreme deference to prison administrators, both before and after the advent of the Charter of Rights and Freedoms, and notwithstanding that the Charter places a burden on government to justify any infringement of rights. Recently, however, two cases from the Supreme Court of British Columbia mark a break from excessive deference and signify the (late) arrival of a Charter-based prison jurisprudence. In each case, prisoner success depended on expert evidence that challenged the assertions and presumed expertise of institutional defendants. In order to prove a rights infringement and avoid justification under section 1, the evidence must illuminate and specify the effects of penal techniques and policies on both prisoners and third parties. The litigation must interrogate the internal penal world, including presumptions about the workings of prisoner society and conceptions of risk management.
-
This article considers the influence of culture within Quebec’s procedural law, building upon the recent reform of the Code of Civil Procedure. The author affirms that the distinctiveness of Quebec’s procedural law resides in its mixed culture, which is the product of the superimposition of different perspectives on the institutional values and symbols of the state’s dispute-processing mechanisms.
-
The adoption of a new Code of Civil Procedure in Quebec provides an opportune moment to consider the reasons for, and consequences of, a new direction in adjectival law. Moreover, it is an appropriate time to reflect on the influence of legal traditions on civil procedure, and the role played by such traditions in the legislative evolution and judicial interpretation of procedural law. This paper analyzes the current trends in civil procedure in Quebec, from both legislative and judicial standpoints, and seeks to relate these trends to tradition-based influences. Ultimately, this study demonstrates that Quebec’s procedural law has experienced great swings of the pendulum – originally inheriting continental civilian procedure from the French, gradually evolving towards a very common law/adversarial notion of procedure, and nowreverting back in a civiliste direction.
Explore
Resource type
Topics
- fix (the term) (1)
Publication year
-
Between 1900 and 1999
(63)
-
Between 1910 and 1919
(1)
- 1918 (1)
- Between 1930 and 1939 (3)
- Between 1940 and 1949 (2)
- Between 1950 and 1959 (4)
- Between 1960 and 1969 (9)
- Between 1970 and 1979 (6)
- Between 1980 and 1989 (14)
- Between 1990 and 1999 (24)
-
Between 1910 and 1919
(1)
-
Between 2000 and 2025
(201)
- Between 2000 and 2009 (63)
- Between 2010 and 2019 (71)
- Between 2020 and 2025 (67)