2022 Year in Review - Part II
Some new law/constitutional politics-related scholarship out this year...
In yesterday’s post (Part I) I examined some of the SCC’s constitutional jurisprudence from this past year. Today I want to briefly share some of the cool scholarship (focusing on law/courts/constitutional politics) that came out in 2022. What follows has a bit of a political science bias, and it includes things I’ve read and that are on my to-read list. And of course, it is far from complete - there’s no way to be comprehensive here so apologies to all those left out!
Mark Harding’s book Judicializing Everything? is quite the accomplishment, managing to shed light on the debate between political and legal constitutionalism while providing a novel integration of many of the debates surrounding various dimensions of constitutionalism in Canada, New Zealand, and the United Kingdom. It’s an excellent book for scholars and students alike.
Colton Fehr’s book Constitutionalizing Criminal Law looks like a fascinating critique of the Supreme Court’s approach to section 7 and the relationship between criminal and constitutional law.
Martin Loughlin’s Against Constitutionalism provides an incisive critique of constitutionalism and ultimately of the use of courts and judicial interpretation, rather than politics, to bring about social progress. As is typical of Loughlin, it is an innovative and likely controversial contribution to a long-lasting debate.
Richard Albert, Ryan Williams, and Yaniv Roznai’s edited book Amending America’s Unwritten Constitution looks like a wonderful collection on a hugely important and understudied topic. People don’t tend to think of the United States and unwritten constitutionalism, and as someone currently undertaking a big new project on Canada’s unwritten constitution, this book is high on my reading list.
Mark Harding and Dave Snow published a new article in Publius examining the use of the principle of “cooperative federalism” by the Supreme Court over the last several decades, a valuable and systemic study of a core aspect of the Court’s federalism jurisprudence.
Danielle McNabb and Kate Puddister have an important new study in Women & Criminal Justice exploring police-involved sexual assault, finding a scant percentage of complaints lead to charges and making suggests for reform.
Erin Crandall has a great study in the Dalhousie Law Journal on federal appointments to provincial superior courts under the current government, situated in reforms to enhance transparency. She finds that while gender representation has improved appointments of people of colour and people with disabilities continue to lag, and tensions exist when it comes to ensuring the judiciary is both representative and officially bilingual.
And I loved Erin Crandall and Andrea Lawlor’s investigation of public support of Canadian courts in the Canadian Journal of Law and Society. Only a handful of previous studies on this topic exist, and the authors make an important finding that partisanship is now a defining characteristic - something that could become very dangerous in the future if it continues or deepens (you only need to look south of the border to see how this could play out).
Elizabeth McCallion’s study of the reformed Senate in the Canadian Journal of Political Science does a fantastic job building on previous work (including my own) to explore the implications of the newly ‘independent’ senators and appointments process on the Senate’s amendment activity and how senators perceive their roles.
Finally, I don’t think it’s published yet, but I read this paper by Naoimi Metallic earlier this year and it’s a simply outstanding examination of the idea of “legislative reconciliation” and the responsibility of governments to proactively protect Indigenous rights given the limitations of negotiations and constitutional litigation. It includes a critical assessment of Quebec’s constitutional challenge to federal initiatives in this area.