{"title":"A Comment on R. v. Reeves: Investigative Issues with Shared Electronic Devices and Data","authors":"Mabel Lai","doi":"10.60082/2563-8505.1383","DOIUrl":"https://doi.org/10.60082/2563-8505.1383","url":null,"abstract":"","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85873903","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Ewert v. Canada: Shining Light on Corrections and Indigenous People","authors":"E. Hill, J. Wolfe","doi":"10.60082/2563-8505.1388","DOIUrl":"https://doi.org/10.60082/2563-8505.1388","url":null,"abstract":"","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86227216","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In R v Vice Media Canada Inc, the Supreme Court of Canada found that journalists may have to turn over their records pertaining to a non-confidential source to the state, so that those records can be used to prosecute the source. While all judges of the Court agreed on this conclusion, they differed on the legal framework to be applied. The majority insisted that with minor modifications the existing balancing approach adequately assessed law enforcement and media interests in production order cases. The concurring judges found that a new “harmonized” approach that balances both the privacy interests and the unique constitutionalized protections afforded to “freedom of the press and other media” under s. 2(b) of the Charter was necessary. The authors argue that the majority decision fails to adequately protect the media. Although the majority improves the press’ ability to challenge production orders, its application of those principles raises considerable doubt about the extent of their impact. The majority also neglects to recognize the presumptive “chilling effects” of production orders targeting journalist-source communications. Finally, by adopting a formalistic approach to characterizing the state’s “investigative” interest, the majority tips the balance in the state’s favour. In light of these shortcomings, the authors propose an alternative framework: using the concurring judges’ approach as a starting point, it would appear that most, if not all, production orders issued against the media will result in a s. 2(b) breach. Thus, justifying such orders requires more than just “balancing” interests; it requires a s. 1 justification for rights infringement under the Oakes test. Such an approach recalibrates the test for production orders and search warrants targeting material in the hands of the media, imposes a stricter burden on the state, and respects the unique constitutional protections afforded to the media in light of their role in a free and democratic society.
在R v Vice Media Canada Inc .一案中，加拿大最高法院裁定，记者可能必须将他们与非机密消息来源有关的记录交给国家，以便这些记录可以用来起诉消息来源。虽然法院的所有法官都同意这一结论，但他们对将适用的法律框架存在分歧。多数人坚持认为，只要稍加修改，现有的平衡办法就能充分评估执法部门和媒体在生产令案件中的利益。同意意见的法官认为，有必要采取一种新的“协调”办法，既平衡隐私权，又根据《宪章》第2(b)条对“新闻和其他媒体自由”提供独特的宪法保护。作者认为，多数人的决定未能充分保护媒体。虽然多数裁决提高了新闻媒体挑战生产订单的能力，但其对这些原则的适用使人们对其影响的程度产生了相当大的怀疑。多数人还忽视了针对记者来源的通信的生产命令的假定“寒蝉效应”。最后，通过采用一种形式主义的方法来描述国家的“调查”利益，多数人将天平向有利于国家的方向倾斜。鉴于这些缺点，作者提出了另一种框架:以同意法官的方法为起点，似乎大多数(如果不是全部的话)针对媒体发布的生产命令将导致违反第2(b)条。因此，要证明这些命令的合理性，需要的不仅仅是“平衡”利益;在奥克斯标准下，它需要第1条的侵权理由。这种做法重新调整了针对媒体手中材料的生产令和搜查令的检验标准，对国家施加了更严格的负担，并尊重了媒体在自由民主社会中所扮演的角色所提供的独特宪法保护。
{"title":"Bad Ad(Vice): On the Supreme Court’s Approach to Press Freedom, Source Protection and State Interests in R. v. Vice Media Canada Inc.","authors":"Justin Safayeni, Mannu Chowdhury","doi":"10.60082/2563-8505.1389","DOIUrl":"https://doi.org/10.60082/2563-8505.1389","url":null,"abstract":"In R v Vice Media Canada Inc, the Supreme Court of Canada found that journalists may have to turn over their records pertaining to a non-confidential source to the state, so that those records can be used to prosecute the source. While all judges of the Court agreed on this conclusion, they differed on the legal framework to be applied. The majority insisted that with minor modifications the existing balancing approach adequately assessed law enforcement and media interests in production order cases. The concurring judges found that a new “harmonized” approach that balances both the privacy interests and the unique constitutionalized protections afforded to “freedom of the press and other media” under s. 2(b) of the Charter was necessary. The authors argue that the majority decision fails to adequately protect the media. Although the majority improves the press’ ability to challenge production orders, its application of those principles raises considerable doubt about the extent of their impact. The majority also neglects to recognize the presumptive “chilling effects” of production orders targeting journalist-source communications. Finally, by adopting a formalistic approach to characterizing the state’s “investigative” interest, the majority tips the balance in the state’s favour. In light of these shortcomings, the authors propose an alternative framework: using the concurring judges’ approach as a starting point, it would appear that most, if not all, production orders issued against the media will result in a s. 2(b) breach. Thus, justifying such orders requires more than just “balancing” interests; it requires a s. 1 justification for rights infringement under the Oakes test. Such an approach recalibrates the test for production orders and search warrants targeting material in the hands of the media, imposes a stricter burden on the state, and respects the unique constitutional protections afforded to the media in light of their role in a free and democratic society.","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79439058","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Court’s decisions in Trump v. Hawaii and Department of Commerce v. New York suggest an inside-out Constitution, with the Court treating the Constitution’s insiders in ways typically reserved for those outside of the scope of its full protection. The Census 2020 Case, in particular, highlights two important ways that the Court has constructed this inside-out Constitution. First, as discussed in greater detail in Part II, the decision offers a clear picture of how the Court has created almost insurmountable barriers for plaintiffs seeking to challenge White Supremacy through equal protection claims. The fate of the equal protection claim in the Census 2020 Case is a logical sequel to the fate of the First Amendment discrimination claim in the Muslim Exclusion Case, Trump v. Hawaii. Both cases illustrate the near-impossibility of vindicating claims of racial or religious animus against historically disadvantaged groups under existing constitutional antidiscrimination jurisprudence. The Department of Commerce v. New York case also illustrates how the substantive rights claims advanced by parties seeking redress for invidious racial discrimination by the government are increasingly vindicated, if they are vindicated at all, through procedural channels. But even when plaintiffs prevail in their procedural claims, as in the Census 2020 Case, the resulting remedies are no match for the underlying equality harms generated by the challenged policies. Racial animus is whitewashed. The Court never grapples with the identity-based dignity and status harms suffered by non-white plaintiffs as the result of challenged policies. As a practical matter, the Court’s failure to grapple with the equality concerns at stake result is procedural protections much narrower in scope than the underlying threats to equality require. Department of Commerce v. New York not only illustrates this point, but also provides a useful preview of how the Court will analyze the claims raised in Department of Homeland Security v. U.C. Regents.
{"title":"The Inside-Out Constitution: Department of Commerce v New York","authors":"Jennifer M. Chacón","doi":"10.1086/708167","DOIUrl":"https://doi.org/10.1086/708167","url":null,"abstract":"The Court’s decisions in Trump v. Hawaii and Department of Commerce v. New York suggest an inside-out Constitution, with the Court treating the Constitution’s insiders in ways typically reserved for those outside of the scope of its full protection. The Census 2020 Case, in particular, highlights two important ways that the Court has constructed this inside-out Constitution. First, as discussed in greater detail in Part II, the decision offers a clear picture of how the Court has created almost insurmountable barriers for plaintiffs seeking to challenge White Supremacy through equal protection claims. The fate of the equal protection claim in the Census 2020 Case is a logical sequel to the fate of the First Amendment discrimination claim in the Muslim Exclusion Case, Trump v. Hawaii. Both cases illustrate the near-impossibility of vindicating claims of racial or religious animus against historically disadvantaged groups under existing constitutional antidiscrimination jurisprudence. \u0000 \u0000The Department of Commerce v. New York case also illustrates how the substantive rights claims advanced by parties seeking redress for invidious racial discrimination by the government are increasingly vindicated, if they are vindicated at all, through procedural channels. But even when plaintiffs prevail in their procedural claims, as in the Census 2020 Case, the resulting remedies are no match for the underlying equality harms generated by the challenged policies. Racial animus is whitewashed. The Court never grapples with the identity-based dignity and status harms suffered by non-white plaintiffs as the result of challenged policies. As a practical matter, the Court’s failure to grapple with the equality concerns at stake result is procedural protections much narrower in scope than the underlying threats to equality require. Department of Commerce v. New York not only illustrates this point, but also provides a useful preview of how the Court will analyze the claims raised in Department of Homeland Security v. U.C. Regents.","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1086/708167","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48790432","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Supreme Court precedent is a topic of perennial prominence. The Court overruled or severely limited multiple precedents last year, just as it did the year before that. Because of our widely-repeated norm of stare decisis, every overruling is criticized. Scholars have then debated whether the Court needs a stronger norm of stare decisis, so that it overrules fewer cases. This focus is misguided. Rather than worrying about which cases will be cast aside, we should pay more attention to those precedents that are left standing in place. Many of the Court’s questionable precedents nonetheless go unquestioned. The real problem is not that the Court overrules too much, but that it overrules without a theory that explains why it overrules so little. At last, it seems such theories may be coming. Last term, Justice Thomas (in Gamble v United States) and Justice Alito (in Gundy v United States) each attempted to explain some of their decisions to reject and adhere to precedent. These explanations deserve serious scholarly scrutiny, which they have not yet received. Unfortunately, these interventions do not solve, and indeed they exacerbate, the problem. What they propose is neither a regime of adherence to precedent, nor a regime without precedent, but rather a regime in which individual Justices have substantial discretion whether to adhere to precedent or not. This turns precedent from a tool to constrain discretion into a tool to expand discretion, and ultimately into a tool to evade more fundamental legal principles. Part I describes the state of stare decisis in the Court today. Part II discusses Justice Thomas’s theory that precedent must be overruled when it is “demonstrably erroneous.” Part III describes Justice Alito’s theory that precedents ought not be overruled on the basis of “halfway originalism.” Part IV explains why discretionary precedent — of which these theories are examples — are worse than no precedent at all.
{"title":"Precedent and Discretion","authors":"William Baude","doi":"10.1086/708215","DOIUrl":"https://doi.org/10.1086/708215","url":null,"abstract":"Supreme Court precedent is a topic of perennial prominence. The Court overruled or severely limited multiple precedents last year, just as it did the year before that. Because of our widely-repeated norm of stare decisis, every overruling is criticized. Scholars have then debated whether the Court needs a stronger norm of stare decisis, so that it overrules fewer cases. \u0000 \u0000This focus is misguided. Rather than worrying about which cases will be cast aside, we should pay more attention to those precedents that are left standing in place. Many of the Court’s questionable precedents nonetheless go unquestioned. The real problem is not that the Court overrules too much, but that it overrules without a theory that explains why it overrules so little. \u0000 \u0000At last, it seems such theories may be coming. Last term, Justice Thomas (in Gamble v United States) and Justice Alito (in Gundy v United States) each attempted to explain some of their decisions to reject and adhere to precedent. These explanations deserve serious scholarly scrutiny, which they have not yet received. \u0000 \u0000Unfortunately, these interventions do not solve, and indeed they exacerbate, the problem. What they propose is neither a regime of adherence to precedent, nor a regime without precedent, but rather a regime in which individual Justices have substantial discretion whether to adhere to precedent or not. This turns precedent from a tool to constrain discretion into a tool to expand discretion, and ultimately into a tool to evade more fundamental legal principles. \u0000 \u0000Part I describes the state of stare decisis in the Court today. Part II discusses Justice Thomas’s theory that precedent must be overruled when it is “demonstrably erroneous.” Part III describes Justice Alito’s theory that precedents ought not be overruled on the basis of “halfway originalism.” Part IV explains why discretionary precedent — of which these theories are examples — are worse than no precedent at all.","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1086/708215","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42321194","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Christopher D. Bredt, Ewa Krajewska, Ben Shakinovsky
{"title":"R. v. Comeau: A Crack In the Wall?","authors":"Christopher D. Bredt, Ewa Krajewska, Ben Shakinovsky","doi":"10.60082/2563-8505.1378","DOIUrl":"https://doi.org/10.60082/2563-8505.1378","url":null,"abstract":"","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79378893","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"To Promote the General Welfare: Why Madison Matters","authors":"James T. Kloppenberg","doi":"10.1086/707380","DOIUrl":"https://doi.org/10.1086/707380","url":null,"abstract":"","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1086/707380","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48305111","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Charter Rights, State Expertise: Testing State Claims to Expert Knowledge","authors":"E. Cunliffe","doi":"10.60082/2563-8505.1387","DOIUrl":"https://doi.org/10.60082/2563-8505.1387","url":null,"abstract":"","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81531040","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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