CONSTITUTIONAL THEORY FALL 2012 Grant Huscroft Class Times MONDAY 8:30-10:30 Room 202 THURSDAY 8:30-10:30 Room

206 Course Materials Most of the course materials are available on the web. If no links are provided, the material is available through LexisNexis, Heinonline, or other library resources. Teaching Format This course places a premium on discussion. I expect you to have read the assigned material before class and to arrive ready to discuss, ask questions, and make arguments about it. Each student will be required to take responsibility for preparing at least one reading and leading the discussion of that reading. Classroom Decorum We are sure to have differences of opinion about the various topics, and our differences may involve deeply held beliefs and values. You will be challenged to think about the issues and to defend your views and I expect classroom discussion to be spirited, but always conducted with goodwill and respect for opposing views. You are not permitted to record the class. Office Hours If you would like to meet please send me an e-mail message at grant.huscroft@uwo.ca proposing a time. Assessment As indicated in the Faculty Calendar and on the Facultys website, courses in the Faculty of Law at Western are graded by letter grades rather than numbers or percentages. The Faculty defines the grades as follows: A Excellent B Good C Competent D Marginal Pass F Fail

Method of Assessment There are two assessment options: I 80% two short essays (35% and 45%) and 20% participation

1. Short essays Choose two paper topics from the options set out in the syllabus. Each paper must be 12-15 pages in length. 2. Class participation Students are expected to attend class having prepared in advance, and to participate in the class discussions. Participation grades will be based on the quality of your contributions to class discussions. II 80% essay and 20% participation

1. Long essay The long essay must be approximately 25 pages in length, on an approved topic set in consultation with me. 2. Class participation Students are expected to attend class having prepared in advance, and to participate in the class discussions. Participation grades will be based on the quality of your contributions to class discussions. Failure to attend classes or to participate meaningfully in class will result in poor participation grades. Warning about Plagiarism Plagiarism is a major academic offence. Any incidents of plagiarism in any assessment method, including examinations, will be penalized severely according to University policy. Failing to properly cite a source you rely upon is plagiarism. Whenever you take an idea, or a passage from another author, you must acknowledge your debt both by using quotation marks where appropriate and by proper referencing such as footnotes. The Universitys policy on plagiarism and other academic offences can be found at: http://www.uwo.ca/univsec/handbook/appeals/scholoff.htm

Syllabus September 6 Introduction We will discuss some current issues and controversies in constitutional law and I will answer any questions about the course and my expectations. I will assign responsibility for the readings to class members following the class, starting with the September 17 class. Sept 10 Current Charter Controversies Canada (Attorney General) v Bedford 2012 ONCA 186 Carter v. Canada (AG), 2012 BCSC 886 Saskatchewan Human Rights Commission v Whatcott (webcast and fact available on SCC site) http://www.scc-csc.gc.ca/case-dossier/cms-sgd/sum-som-eng.aspx?cas=33676 Sept 13 The Nature of Judging Jeffrey Goldsworthy, The Limits of Judicial Fidelity to Law (The Coxford Lecture 2010) Sept 17, 20 Vagueness, Ambiguity, and Indeterminacy/Underdeterminacy Larry Solum Legal Theory Lexicon Vagueness and Ambiguity http://lsolum.typepad.com/legal_theory_lexicon/2006/08/legal_theory_le.html Larry Solum Legal Theory Lexicon Indeterminacy http://lsolum.typepad.com/legal_theory_lexicon/2004/05/legal_theory_le_2.html Jeremy Waldron, Vagueness in Law and Language: Some Philosophical Issues 82 Cal L Rev 509 (1994) http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1719&context=californialawrev iew

Timothy Endicott, Law and Language http://plato.stanford.edu/entries/law-language/ Andrei Marmor, Varieties of Vagueness in the Law USC Research Paper (2012) http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2039076 Further reading: Brian Bix, Law, Language and Legal Determinacy (1996) Timothy Endicott, Vagueness and Law in Ronzitti (ed), Vagueness: a Guide (2011) Timothy Endicott, Law is Necessarily Vague (2001) 7 Legal Theory 377 Sept 24 Sept 27, Oct 1 The Role and Relevance of Precedent Lamond, Precedent and Analogy in Legal Reasoning (2006) http://plato.stanford.edu/entries/legal-reas-prec/ Waldron, Stare Decisis and the Rule of Law http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1942557 Larry Alexander and Emily Sherwin, Judges as Rulemakers http://papers.ssrn.com/sol3/papers.cfm?abstract_id=591666 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) (precedent discussion only) http://caselaw.lp.findlaw.com/scripts/getcase.pl?vol=505&invol=833&court=US Assignment: Critically evaluate the arguments concerning the relevance of SCC precedents in Canada (Attorney General) v Bedford 2012 ONCA 186 and Carter v. Canada (AG), 2012 BCSC 886. Your paper should incorporate the work of at least two theorists, and is due October 1. Further readings: Larry Alexander, Constrained by Precedent, 63 Southern California L Rev 1 (1989) Neil MacCormick, The Significance of Precedent, Acta Juridica (1998) 174 Class cancelled for OCIs

Stephen Perry, Judicial Obligation, Precedent and the Common Law, (1987) 7 Oxford JLS 215 Fred Schauer, Precedent, 39 Stanford L Rev 571 (1987) October 4 Overruling Precedent

R v Henry [2005] 3 S.C.R. 609 http://scc.lexum.org/en/2005/2005scc76/2005scc76.html Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia, [2007] 2 S.C.R. 391 http://scc.lexum.org/en/2007/2007scc27/2007scc27.html Ontario (Attorney General) v. Fraser [2011] 2 S.C.R. 3 http://scc.lexum.org/en/2011/2011scc20/2011scc20.html Oct 8 Oct 11, 15 Thanksgiving Deference

Aileen Kavanagh, Defending Deference in Public Law and Constitutional Theory (2010) 126 LQR 222 http://agc-wopac.agc.gov.my/e-docs/Journal/0000017398.pdf Aileen Kavanagh, Judicial Restraint in the Pursuit of Justice (2010) 60 UTLJ 23 TRS Allan, Judicial Deference and Judicial Review: Legal Doctrine and Legal Theory (2011) 127 LQR 96 http://agc-wopac.agc.gov.my/e-docs/Journal/0000020672.pdf TRS Allan, Deference, defiance, and doctrine: defining the limits of judicial review (2010) 60 UTLJ 1 Further reading: Aileen Kavanagh, Deference or Defiance? The Limits of the Judicial Role in Constitutional Adjudication in G. Huscroft (ed), Expounding the Constitution: Essays in Constitutional Theory (2008) TRS Allan, Human Rights and Judicial Review: A Critique of Due Deference [2006] CLJ 671

Alison Young, In Defence of Due Deference (2009) 72 MLR 554 Oct 18, 22 Unwritten Constitutional Rights

Beverley McLachlin, The Cooke Lecture (2005) http://www.scc-csc.gc.ca/court-cour/ju/spe-dis/bm05-12-01-eng.asp David Mullan, Underlying Constitutional Principles: The Legacy of Justice Rand, (2010) 34 Manitoba LJ 73 http://robsonhall.ca/mlj/sites/default/files/articles/underlying constitutional principles.pdf Mark D Walters, Written Constitutions and Unwritten Constitutionalism, in Grant Huscroft (ed.), Expounding the Constitution: Essays in Constitutional Theory (2008) 245 http://law.queensu.ca/facultyAndStaff/facultyDirectory/walters/WaltersUnwrittenConstitutional ism.pdf Huscroft, Romance, Realism and the Legitimacy of Implied Rights (2011) U Queensland LJ http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1935613 Further reading: TRS Allan, Constitutional Justice and the Concept of Law in Huscroft (ed.), Expounding the Constitution: Essays in Constitutional Theory (2008) 219 Goldsworthy, Unwritten Constitutional Principles in Huscroft (ed.), Expounding the Constitution: Essays in Constitutional Theory (2008) 277 Assignment: Evaluate the potential/relevance of unwritten/underlying rights in Canada, having regard to the work of two or more theorists and any relevant cases. Due October 22. Oct 25 The Oakes Test Revisited

Alberta v. Hutterian Brethren of Wilson Colony, [2009] 2 S.C.R. 567 Sujit Choudhry, So What is the Real Legacy of Oakes? Two Decades of Proportionality Analysis under the Canadian Charters Section 1 (2006) 34 S.C.L.R. 501 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=930436

Oct 29

The Spread of Proportionality

Alec Stone-Sweet and Jud Matthews, Proportionality Balancing and Global Constitutionalism (2008) http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1569344 Iddo Porat, Proportionality and the Culture of Justification, 59 American Journal of Comparative Law (2010) (with Moshe Cohen-Eliya) http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1623397 Nov 1, 5 Robert Alexy

Alexy, Constitutional Rights, Balancing, and Rationality (2003) 16 Ratio Juris 131 http://xa.yimg.com/kq/groups/17745960/1823724504/name/Constitutional+Rights+Balancing+ and+Rationality+-+Robert+Alexy.pdf Alexy, On Balancing and Subsumption: A Structural Comparison (2003) 16 Ratio Juris 433 http://onlinelibrary.wiley.com/store/10.1046/j.0952-1917.2003.00244.x/asset/j.09521917.2003.00244.x.pdf?v=1&t=h6p7knu5&s=bc514e9ff2f7c130e8aa204846e561ddad082067 Alexy, Balancing, Constitutional Review, and Representation (2005) 3 International Journal of Constitutional Law 572 Alexy, The Construction of Constitutional Rights (2010) 4 Law & Ethics of Constitutional Rights 20 http://www.clb.ac.il/workshops/2009/articles/alexy.pdf Further readings: Alexy, A Theory of Constitutional Rights (2002) Nov 8, 12 Aharon Barak

Barak, Proportional Effect: The Israeli Experience (2007) 57 University of Toronto Law Journal 369 http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=4691&context=fss_papers Barak, Proportionality and Principled Balancing, (2010) 4 Law & Ethics of Human Rights 1 Barak, Proportionality (2012) ch 12 (stricto sensu balancing) Assignment: Compare and contrast the approaches of Alexy and Barak. Due: November 12.

FYI: You may be interested to watch these videos: http://www.youtube.com/watch?v=kcPOoyb6b4o http://www.fljs.org/section.aspx?id=3039 Nov 15 Proportionality Critics Barak profile interview Barak speech on proportionality

Timothy Endicott, Proportionality and Incommensurability (2012) Oxford Legal Studies Research Paper http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2086622 Grgoire Webber, Proportionality, Balancing, and the Cult of Constitutional Rights Scholarship http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1322810 Nov 19 The Principles of Fundamental Justice and Proportionality

Hamish Stewart, Fundamental Justice (2012) (Essentials book, available online) 126-155 Assignment: Does section 1 have a meaningful role to play in s 7 litigation? Due: Nov 19. Nov 22, 26 Hate Speech Jeremy Waldron, Holmes Lectures (2009) (All three Lectures) http://habermas-rawls.blogspot.ca/2009/11/jeremy-waldrons-holmes-lectures-on-hate.html Assignment: Evaluate the SCCs decision in Whatcott and/or the repeal of s 13 of the Canadian Human Rights Act having regard to Waldrons argument for hate speech regulation. Due Nov 26. Nov 29 Last class