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What is the distinction between structural provisions and amendments in constitutional documents?
Structural provisions organize government institutions and functions, while amendments protect individual and collective rights.
What are the functions of sections 91 and 92 of the Constitution Act (1867)?
Section 91 gives the federal government authority over national issues, while section 92 gives provincial governments authority over local issues.
What are the key elements of the Oakes test?
The Oakes test assesses whether a law infringing Charter rights can be justified, requiring a pressing objective. It also passes a proportionality test: a rational connection, minimal impairment, and ensuring that the benefits outweigh the harm caused by the infringement.
What was the Supreme Court's ruling in Lochner v. New York?
The Court struck down a New York law limiting bakers' working hours, arguing it violated the due process clause of the 14th Amendment right to freely contract. The majority argued it interfered with individual liberty and employer-employee agreements.
What is the distinction between weak and strong judicial review?
Weak judicial review allows legislatures to override court decisions, while strong judicial review gives courts final authority over the interpretation of rights.
What are process-related reasons for and against judicial review?
Process-related reasons focus on accountability and fairness, arguing judges lack legitimacy compared to elected representatives.
What is outcome-related reasons for and against judicial review?
Outcome-related reasons consider the quality and impact of decisions. Supporters of judicial review believe courts deliver better rights protection, while critics argue that judicial decisions don’t always lead to better policies or outcomes than those made by legislatures.
What are Raz's outcome-based reasons for judicial review?
Raz argues that courts are better at protecting individual rights, resolving controversial cases fairly, and have legal expertise, focusing on rights without political influence.
What are Raz's critiques against judicial review?
Raz points out that judges may lack social context understanding and that judicial review can undermine democracy by shifting power from elected legislators to unelected judges.
What is Waldron’s counterargument regarding legislative versus judicial decision-making?
Waldron argues legislatures are more democratically accountable, better suited to consider societal impacts, and can provide equitable outcomes just as well as courts.
What does the orientation-to-particular-cases argument for judicial review entail?
This argument suggests courts effectively resolve specific disputes by tailoring decisions to the unique facts of each case for precise justice.
How does Waldron counter the orientation-to-particular-cases argument?
Waldron claims legislatures create laws through democratic deliberation, which can effectively protect rights and may lack the democratic legitimacy of judicial decisions.
What does the orientation-to-the-text-of-a-bill-of-rights argument state?
It holds that courts ensure laws align with a bill of rights and judges are skilled at interpreting these texts in legal disputes.
What is Waldron's counterargument to the orientation-to-the-text-of-a-bill-of-rights argument?
Waldron argues legislatures can also interpret rights texts democratically and that judicial review often emphasizes legal formalism over broader social considerations.
What is the stating-reasons argument for judicial review?
The argument claims courts promote transparency by justifying their decisions in detail, enhancing accountability.
How does Waldron counter the stating-reasons argument?
Waldron contends legislatures also justify decisions through public debates and consultations, making their reasons more representative of societal values.
What is Waldron's process-based reason against judicial review?
Waldron argues judicial review undermines democratic legitimacy by allowing unelected judges to overturn laws that reflect the people's will, weakening inclusive self-governance.
What is Christiano's definition of democracy?
Democracy is governance that treats all individuals' interests and judgments equally, involving transparency, equal participation, deliberation, and accountability, beyond just majority rule.
What are the three key facts about Christiano's common world?
Equal Stakes: Everyone has an equal stake affecting opportunities and rights. 2. Compromise: Maintained through balancing diverse interests. 3. Overall Justice: Embodies fairness and equitable treatment in shared institutions.
What does Christiano mean by 'interest'?
Interest refers to what individuals need or value to live well, including fundamental needs like security, autonomy, and meaningful societal participation.
What is Christiano’s foundational principle of justice?
The principle of equal advancement of interests means that all individuals' interests must be considered equally in social and political institutions.
What is the publicity of justice according to Christiano?
Justice must be publicly seen, known, and understood by society, ensuring transparency in processes to foster trust and legitimacy in the political system.
What are the challenges illustrated by diversity, fallibility, cognitive bias, and disagreement in decision-making?
Diversity leads to varied perspectives, fallibility indicates human error in judgment, cognitive bias skews reasoning, and disagreement arises from different views on achieving shared goals.
What are the four fundamental interests that Christiano identifies for equal participation in decision-making?
Protecting Against Cognitive Bias: Ensures diverse perspectives reduce biases. 2. Being at Home in the World: Individuals feel a sense of belonging and influence. 3. Learning the Truth Through Free Speech and Discussion: Open participation fosters idea exchange and informed decisions. 4. Affirmation of Equal Moral Status: Signals that everyone's interests are valued equally.
In what sense are the four fundamental interests political according to Christiano?
They relate to individuals’ roles and participation in public institutions, guiding democratic systems to ensure equal say in global policies.
In what sense are the four fundamental interests fundamental?
They are essential for achieving justice and dignity, necessary for individuals to fully participate in society and trust that their rights are upheld.
In what sense are the four fundamental interests publicly preeminent?
They affect everyone equally and govern the common world, their protection is necessary for legitimacy and fairness in public decision-making processes.
Who authored the majority opinion in R v. Keegstra?
Justice Dickson penned the majority opinion in R v. Keegstra (1990).
What was the key question of law in R v. Keegstra?
The court determined whether Section 319(2) of the Criminal Code, which criminalizes hate speech, violated the constitutional guarantee of freedom of expression under Section 2(b) of the Charter.
What was the Supreme Court's holding in R v. Keegstra?
The Supreme Court upheld the constitutionality of Section 319(2), ruling that the limitation on freedom of expression was justifiable under Section 1 due to harm caused by hate speech.
What did the Supreme Court say about freedom of expression in Ford v. Quebec?
The court emphasized that freedom of expression is fundamental in Canadian society, protecting individual self-expression, fostering democratic participation, and contributing to the search for truth.
What is the two-step test from the Irwin Toy case regarding freedom of expression violations?
Does the activity convey meaning? 2. Does the government action infringe on this expressive
How does Waldron distinguish between offence and harm to dignity?
Waldron argues that offence refers to personal discomfort from disagreeable speech, while harm to dignity has a deeper impact on individual worth and social standing, particularly through hate speech.
According to Waldron, how does hate speech harm dignity?
Hate speech harms dignity by creating a hostile public environment, conveying inferiority, undermining equal respect, and leading to social exclusion and diminished trust in institutions.
What are the three statuses speech can have in relation to free speech in the United States?
Protected Speech: Most expression under the First Amendment; 2. Unprotected Speech: Speech that is harmful, like incitement or defamation; 3. Low-Value Speech: Protected but subject to less scrutiny, like commercial ads.
What is the Narrow Normative Coverage Question?
It determines if specific utterances, such as hate speech or discriminatory signs, are protected by free speech by balancing their value against potential social harm.
What are obligation-inducing utterances?
Speech acts that legally or socially bind others, shaping behavior and society, requiring regulation to prevent inequality.
What is the significance of obligation-inducing utterances?
They actively shape societal norms and behaviors, such as in contracts, inciting crime, or reinforcing segregation through discriminatory signs.
What is Sumner’s key thesis regarding hate speech regulation?
Sumner's key thesis is that hate speech regulation must balance free expression and harm, restricting hate speech only if it meets the liberalism-based harm criteria, such as Mill's harm principle.
What is Mill’s harm principle?
Mill's harm principle states that the only justification for limiting an individual's freedom is to prevent harm to others, requiring tangible harm rather than mere offense.
What is the harm-test in relation to speech?
The harm-test evaluates whether speech directly causes harm to others, such as loss of rights or well-being, exemplified by speech that incites violence.
What is the cost-benefit test in the context of speech?
The cost-benefit test compares the social costs and benefits of speech restrictions, ensuring they are justified and proportionate.
What are the three factors of the cost-benefit test?
Severity of Harm: The seriousness of harm caused by speech. 2. Likelihood of Harm: The probability of harm resulting from the speech. 3. Value of Speech: The social, cultural, or intellectual significance of the speech.
What is the distinction between promoting and inciting hate according to Sumner?
Promoting hate expresses hateful ideas without encouraging action, while inciting hate actively provokes harmful actions against a group, leading to different legal treatments.
What are the key facts of the Rizzo case?
Rizzo & Rizzo Shoes Ltd. (Re) (1998) involved employees terminated after bankruptcy, seeking termination and severance pay under the ESA of Ontario. The Supreme Court ultimately ruled in favor of the employees, reversing lower court decisions that denied these payments.
How does the Supreme Court interpret remedial legislation in Rizzo?
The Supreme Court emphasized that the ESA is remedial and should be interpreted broadly to fulfill its purpose of providing employee protection, thus ruling in favor of employees' termination and severance pay.
What is the plain meaning rule in statutory interpretation?
The plain meaning rule states that statutory language should be interpreted based on its ordinary meaning unless it leads to an absurd or unjust outcome.
How did the plain meaning rule apply in Rizzo?
A strict plain meaning interpretation of the ESA suggested no severance for terminated employees during bankruptcy. The Supreme Court moved beyond this to a purposive interpretation to uphold the legislation’s intent.
What is the rule that appeals to the purpose of legislation?
This rule focuses on interpreting statutes based on the legislature's intent and broader goals rather than strict textual adherence.
How did this rule apply to Rizzo?
The court reasoned that the ESA was meant to protect employees financially, and excluding bankruptcy terminations from compensation contradicted this purpose, leading to a prioritization of legislative intent.
What does the absurdity rule assert in statutory interpretation?
The absurdity rule asserts that courts should avoid interpretations that lead to unreasonable or illogical results.
How was the absurdity rule relevant in Rizzo?
A literal interpretation would leave vulnerable employees without protection, which the court found absurd, thus choosing a fair interpretation that aligned with the ESA's remedial purpose.
What is Hansard evidence?
Hansard evidence refers to records of parliamentary debates that can be used to gauge legislative intent.
How did Hansard evidence apply in Rizzo?
The Supreme Court used Hansard evidence to confirm the legislature's intent to provide broad protections for employees under the ESA, supporting the court's generous interpretation.
What is benefits-conferring legislation?
Benefits-conferring legislation should be interpreted generously to provide benefits to intended recipients and promote fairness.
How did the benefits-conferring rule apply to Rizzo?
The Supreme Court ensured that the ESA's protections covered employees terminated during bankruptcy, aligning with its purpose of safeguarding employee rights.
What are non-compete clauses in employment contracts?
Non-compete clauses restrict employees from working with competitors or starting similar businesses after leaving an employer, often evaluated for enforceability.
What factors determine the enforceability of non-compete clauses?
The enforceability of non-compete clauses typically hinges on their reasonableness in scope, duration, and geography.
What does Oliphant argue about the role of legal rules in the outcomes of non-compete clause cases?
Oliphant argues that legal rules and reasons alone are insufficient in determining outcomes; external factors like public interest perceptions shape decisions.
What is the decisive factor courts consider regarding non-compete clauses?
The broader societal impact of enforcing or invalidating such clauses, balancing employer interests against employee livelihoods and economic competition.
What general considerations influence legal case outcomes beyond legal rules?
Non-legal considerations such as societal values, economic factors, and practical consequences play a critical role in legal decisions.
How do the cases discussed by Oliphant illustrate the influence of external considerations on legal outcomes?
In a case involving pollution, decisions may reflect economic impacts, social values, and judges' discretion, not just legal rules.
How does Oliphant's view apply to the Keegstra case regarding free speech?
In Keegstra, societal factors influenced the decision on hate speech regulation, emphasizing the harmful social effects of hate speech.
What role did societal and economic factors play in the Rizzo case?
In Rizzo, the court's decision was influenced by economic and social considerations, showing that outcomes were not determined by precedent alone.
How many canons of statutory interpretation does Llewellyn describe?
Karl Llewellyn identifies 58 canons of statutory interpretation that often conflict with one another.
What is the Literal Rule of statutory interpretation?
The Literal Rule dictates that words in a statute should be interpreted in their plain, ordinary meaning.
What is the Purpose Rule of statutory interpretation?
The Purpose Rule suggests that statutes should be interpreted in light of the legislature's intent and the broader purpose of the law.
What does 'Expressio Unius Est Exclusio Alterius' mean?
This canon states that mentioning one thing in a statute implies the exclusion of others not mentioned.
What is Inclusive Interpretation in statutory interpretation?
Inclusive Interpretation asserts that statutes should be broadly interpreted to cover situations that align with the law's purpose, even if not explicitly mentioned.
What determines which canon a judge chooses according to Llewellyn?
Judges choose which canon to apply based on the 'sense of the situation,' referring to their judicial instinct or intuition feeling for the appropriate outcome.
What parallels exist between Oliphant’s understanding and Llewellyn’s idea of judicial decision-making?
Oliphant argues that judicial decisions are shaped by broader considerations like public interest and societal values, aligning with Llewellyn's notion that judges rely on their 'sense of the situation' to navigate conflicting legal principles.
What is the defining empirical tenet of legal realism?
Legal realism asserts that judicial decisions are shaped by real-world contexts, including societal values and judges' subjective perceptions, rather than solely by abstract legal rules.
What is the normative cousin of legal realism embraced by Llewellyn and Oliphant?
The normative cousin is the idea that law should adapt to serve society's needs, reflecting evolving values and promoting justice and social welfare.
How does Kennedy illustrate the complexities of judicial decision-making with his toy example?
Kennedy's toy example features striking workers blocking traffic, raising the issue of whether their right to protest outweighs public order, illustrating the tension between legal rules and personal inclinations.
What are the two opposing poles in Kennedy’s duality of judicial decision-making?
HIWTCO (How I Want to Come Out) reflects the judge’s personal inclinations and desired outcomes; 2. Objective Requirements of the Law represents rigid legal standards the judge feels bound to follow.
What is Kennedy’s HIWTCO in the workers-blocking-traffic case?
Kennedy’s desired outcome is to support the workers' right to strike, believing their cause to be just and socially important.
What initial guess does Kennedy make about the law regarding blocking traffic?
Kennedy initially assumes the law prohibits blocking traffic since it disrupts public order and violates road usage rules.
What two rules does Kennedy consider in the workers-blocking-traffic case?
A principle supporting free expression and protest, favoring the workers; 2. A principle emphasizing public order, siding against the workers.
How does the tension between HIWTCO and the objective requirements of law affect judicial reasoning?
Judges reconcile personal inclinations with legal frameworks through interpretive strategies, navigating conflicts to achieve fair outcomes.
How do rules and precedents function in a law field?
They provide a foundation for legal interpretation, guiding judges in applying the law based on established principles.
What role do social norms and values play in a law field?
They influence how legal rules are applied and interpreted, reflecting societal expectations and ethical standards.
Why is judicial discretion important in a law field?
Judicial discretion allows judges to interpret and apply laws flexibly based on the specific context of a case.
What are institutional constraints in the context of a law field?
They are factors, such as higher court rulings or legislative mandates, that limit the range of judicial choices available to judges.
What challenges do judges face in an unrationalized field?
Judges struggle with conflicting rules and principles, making consistent and coherent legal reasoning difficult.
How does an impacted field affect judicial decision-making?
Judges have limited flexibility in interpretation due to well-defined rules and precedents that guide their decisions.
What makes a case of first impression unique?
It is unique because it lacks prior judicial rulings, requiring the judge to develop new legal reasoning from scratch.
In what way does the Devil's Compact create an ethical dilemma for judges?
Judges may uphold unjust laws while believing in their personal disagreement with the legal outcome, creating a conflict between duty and morality.
How can the existence of a contradictory field complicate judicial rulings?
It forces judges to choose between conflicting legal principles, which can lead to inconsistent legal outcomes.
What is the definition of a law field according to Kennedy?
Kennedy conceptualizes a law field as the contextual and interpretive framework within which judicial decisions are made, encompassing legal rules, precedents, social values, political pressures, and institutional norms.
What is an impacted field in law?
An impacted field is a highly structured area of law characterized by clear rules and precedents that significantly constrain judicial discretion.
What defines a case of first impression?
A case of first impression is a legal situation where no prior rulings or precedents exist, requiring judges to establish new legal reasoning.
What is an unrationalized field in the context of law?
An unrationalized field refers to a disorganized sector of law with conflicting rules and principles, lacking coherent integration.
How is a contradictory field described in legal terms?
A contradictory field contains legal principles that directly conflict, requiring judges to prioritize one principle over another.
What is the purpose of collective bargaining?
The purpose of collective bargaining is to protect workers’ rights and interests, ensuring they have a voice in workplace decisions and reducing power imbalances between employees and employers.
What are the key components of collective bargaining?
Key components include negotiations over wages, working hours, benefits, workplace safety, and other employment terms.
What does Section 7 of the Wagner Act guarantee?
Section 7 guarantees employees the right to self-organization and the right to bargain collectively for mutual aid.
What does Section 13 of the Wagner Act encompass?
Section 13 encompasses the right of employees to strike.
What does Section 8(a) of the Wagner Act prohibit?
Section 8(a) makes it an unfair labor practice for employers to prevent employees from exercising their rights under Section 7.
How did the Wagner Act influence Canadian labor legislation?
The Wagner Act served as a model for Canadian labor laws, inspiring Wagner-style collective bargaining laws that ensure workers’ rights to unionize in the Canadian context.
What is the right to unionize in Canadian Wagner Act-style legislation?
Workers have the legal right to form and join unions without employer interference.
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Flashcard (85)