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University of Toronto Law Journal – Volume 69, No. 1, Winter 2019

University of Toronto Law Journal – Volume 69, No. 1, Winter 2019

Focus Feature

Dunsmuir focus feature: Introduction
Robert Danay

A house divided: The Supreme Court of Canada’s recent jurisprudence on the standard of review
Robert Danay

Dunsmuir’s Disconnect
Matthew Lewans

Dunsmuir and the scope of admissible evidence on judicial review: Principled limitations or path dependency?
Benjamin Oliphant, Lauren J Wihak

Articles

Group RESPs: The intersection of government support for education savings and securities regulation
Gail E Henderson

How the prison is a black box in punishment theory
Lisa Kerr

The concept of a linguistic community
Érik Labelle Eastaugh

Review Essay
The Legitimacy of Civil Freedom
Florian Rödl

 

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One Final Note

The Concurring Opinions website will now go dormant. The links for old posts will remain active. I’m not sure how long they will stay active, as winding up everything here will take time. There could also be some automatic posts here that we’ve not yet disabled, and I may cross-post here from time to time if I write something elsewhere.  Otherwise, farewell and Happy New Year.

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Sir Humphrey on the End of CoOp

I will probably retire this meme for future blogging, but I thought I’d close my CoOp posts with one last quote from Sir Humphrey Appleby:

“Minister, I have some very grave news.”

“Yes, Humphrey?”

“The relationship, which I might tentatively aver has been not without a degree of reciprocal utility and even occasional gratification, is approaching a point of irreversible bifurcation and, to be brief, is in the propinquity of its ultimate, regrettable, termination.”

“I see.”

“I’m on my way out.”

“What?”

“One has to accept what fate has in store, when one passes on.”

“Passes on?”

“To pastures new, perhaps greener.”

 

 

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The Severability Mess

I’m not concerned about Judge O’Connor’s opinion invalidating the Affordable Care Act. Appellate courts exist to correct erroneous trial court rulings. I am concerned, though, about the state of severability doctrine. Do you remember the severability analysis in Marburg v. Madison? The part where Chief Justice Marshall examined whether the rest of the Judiciary Act of 1789 could stand given that the Court was invalidating one part of that Act. Of course you don’t. Because no such analysis was done.

I think that severability should be presumed unless Congress speaks to the contrary. Given that there are many precedents on the other side, though, Congress should legislate in a general way to create this presumption for all statutes going forward.

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Churchill on Democracy

One of Churchill’s most famous quotes is that democracy is the worst form of government except all others (though he said something different and was quoting someone else). In a delightful 1954 speech accepting an honorary degree awarded in New York, though, he gave a more cheerful defense worth keeping in mind at this time:

”In a society where there is democratic tolerance and freedom under the law, many kinds of evils will crop up, but give them a little time and they usually breed their own cure. I do not see any reason to doubt the truth of that.  There is no country in the world where the process of self-criticism and self-correction is more active than in the United States.”

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Churchill and the Declaration of Independence

At the end of her terrific book on the Declaration of Independence, Pauline Maier marveled that by 1943 Archibald MacLeish was calling that text “is a part of the British inheritance as it is of ours.” “Just imagine George III’s amazement,” she said, “at leaning that the Declaration of Independence would one day become a constructive part of the British Heritage.”

How did this happen? The alliance between Britain and the United States during the two world wars is part of the answer. But Churchill is also part of the answer  I believe that his repeated statement of this connection made the Declaration an Anglo-American text  On Independence Day in 1918, he gave a speech describing the Declaration as the “third title deed on which the liberties of the English-speaking people are founded.”  (After Magna Carta and the Bill of Rights of 1689). He made this comparison many times after this, especially in the “Iron Curtain” speech of 1946. More on this in another post

 

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The Joys of Writing

I came across this 1908 speech from Churchill that wonderfully expresses why I love what I do:

”The fortunate people in the world—the only really fortunate people in the world, in my mind—are those whose work is also their pleasure. The class is not a large one, not nearly so large as it is often represented to be; and authors are perhaps one of the most important elements in its composition. … Whether a man writes well or ill, has much to say or little, if he cares about writing at all, he will appreciate the pleasures of composition. To sit at one’s table on a sunny morning, with four clear hours of uninterruptible security, plenty of nice white paper, and a pen—that is true happiness. The complete absorption of the mind upon an agreeable occupation—what more is there than that to desire?”

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Winston Churchill and Federalist #10

One point of interest during my research on Winston Churchill is that he quoted Federalist #10 in his discussion of the Constitution in A History of the English Speaking Peoples. Moreover, he seems to have internalized some of the ideas from that essay. In a major speech attacking a proposal to reform the House of Lords in 1947, Churchill argued that government needed to be structured to prevent any single faction from gaining power. I am going through all eight volumes of Churchill’s speeches (a fascinating though lengthy journey) to see if I can find any further connections between his evolving thought and our Constitution. Quoting Churchill is as good a way as any to wrap up CoOp, though I do have a special final post in mind.

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Law and Humanities Roundup: Holiday Edition 12.14.18

Still Need Ideas for Holiday Gifts?

What about a “Decision Paperweight”? Eighteen dollars at Uncommon Goods. What about a first edition of John Jay Osborn’s The Paper Chase? I love what the Unemployed Philosopher’s Guild has on offer, including the Supreme Court Cases Mug and the Banned Books Mug. The National Archives sells a Declaration of Independence silk scarf ($60). You can also check out sites such as Etsy and eBay for interesting items; I’ve found lovely Brooke Cadwallader Declaration of Independence silk scarves, a scarf related to the famous Price Waterhouse v. Hopkins case, and other items. I collect scarves so those are the items I look for, but there are lots of mugs, pens, pins, ties, paperweights, bookends, decks of cards, first editions, gavels, lamps, and other things that would make any legal eagle chirp happily. I even found a lovely small watercolor of Alexis de Tocqueville on Etsy a couple of weeks ago; I snapped that up immediately.

New Publications

Here’s a book to put on your holiday shopping list for lawyers and law students on your list this holiday season: Laura Little’s Guilty Pleasures: Comedy and Law in America (Oxford University Press (Oxford University Press, 2018).

Few people associate law books with humor. Yet the legal world–in particular the American legal system–is itself frequently funny. Indeed, jokes about the profession are staples of American comedy. And there is actually humor within the world of law too: both lawyers and judges occasionally strive to be funny to deal with the drudgery of their duties. Just as importantly, though, our legal system is a strong regulator of humor. It encourages some types of humor while muzzling or punishing others. In a sense, law and humor engage a two-way feedback loop: humor provides the raw material for legal regulation and legal regulation inspires humor. In Guilty Pleasures, legal scholar Laura Little provides a multi-faceted account of American law and humor, looking at constraints on humor (and humor’s effect on law), humor about law, and humor in law. In addition to interspersing amusing episodes from the legal world throughout the book, the book contains 75 New Yorker cartoons about lawyers and a preface by Bob Mankoff, the cartoon editor for the New Yorker.

 

 

Cover for Guilty Pleasures

 

Read More

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The End of CoOp

We have decided that Concurring Opinions will come to a close at the end of the month. There will be some final farewell posts, but starting on January 1 the site will be dormant while we figure out how best to save our old posts.

I want to thank my co-bloggers and our readers. I will still blog from time to time at Balkinization, and who knows what else the future may hold.